The Department of Labor recently announced that the federal minimum wage for contracts covered by Executive Order 13658 will increase in 2018 to $10.35 per hour. The minimum hourly wage that generally must be paid to tipped employees covered by that Executive Order and performing work on or in connection with covered contracts will be $7.25 for 2018. Contracts which were awarded on or after January 1, 2015, or were through bilateral negotiations on or after January 1, 2015 (a) renewed, (b) extended or (c) amended pursuant to a modification that is outside the scope of the original contract are subject to the Order. Various exemptions apply, such as for ski areas, so each contractor, including all concessioners, needs to determine whether its particular contract is covered by the Executive Order.
The Coronado National Forest recently denied a recreation cabin owner’s request to sell its cabin and transfer the permit to a new owner because the agency had secretly changed the cabin’s designation from a “recreation residence” to an “isolated cabin.” The agency claimed that the change was appropriate because the cabin was not part of an established group or “tract” of cabins. When the cabin owner applied for the transfer, the agency denied the request because it was phasing out the isolated cabin program. The Forest Service Manual states that “isolated cabin” is a designation that “includes isolated recreation cabins located on sites not planned or designated for recreational cabin purposes [where] use of these cabins originated from situations other than occupancy trespasses or invalid mining claims.” It further states that, “in most circumstances, these uses should be phased out.” Holders of recreation residence cabins, however, must be given at least 10 years notice if the agency decides to make an alternative use of the site and there is no agency policy to phase them out. The Forest Service reportedly changed the designation from a recreation residence to an isolated cabin in 2008 but did not disclose it to avoid negative press.
In response, Senator Jeff Flake has introduced proposed legislation, the Oracle Cabins Conveyance Act, which would require the Forest Service to sell the land where the cabin is located to the cabin owner for fair market value. Senator Flake has also asserted that the agency could voluntarily exercise its Small Tract authority to sell the parcels to the cabin owners, thus avoiding the need for federal legislation.
The National Park Service (NPS) recently refused to release the annual gross receipts of one of its concessioner in response to a request under the Freedom of Information Act (FOIA), asserting that it was confidential business information of the concessioner. The requestor sought the information in an effort to determine if NPS was implementing a consistent method for assessing franchise fees under its various concession contracts. After the initial FOIA request was denied, the requestor sought reconsideration and demonstrated that NPS had released the same data in response to prior requests, and that the data was typically released in each prospectus issued by NPS. NPS denied the reconsideration request with no further explanation.
In this particular case, the requestor operated under a concession contract pursuant to which it provided services inside a National Park unit. The requestor, however, also provided services outside of the National Park unit. NPS had taken the position that the revenue from all of the concessioner’s services, even those outside the Park unit, were to be used to assess the franchise fee. The requestor had noted that NPS had taken a different position with regard to at least one other concession operation based on a Franchise Fee Analysis report prepared by NPS’s experts. The requestor stated in its requests to NPS that it is seeking the information to determine if the agency is using a consistent approach among its concessioners to calculating franchise fees and it relied on the government’s assertion that the FOIA “keeps citizens in the know about their government.” The requestor intends to appeal the denial.
Legislation was recently introduced which would allow the Forest Service to lease structures such as ranger stations or storage facilities to private entities. Notably, the agency does not need to make any determination that the structures are no longer needed before leasing them out to third parties, but presumably only these structures would be offered for lease. The legislation as proposed also does not place any limits on the term length of the lease. The authority, if enacted, would allow the agency to lease structures to local towns and counties in situations where a local entity is adjacent to or surrounded by National Forest and in need of access to additional structures.
Before entering into any lease, the Forest Service would have to consult with local government officials and provide public notice of the lease. The agency must also receive fair market value for the property being leased, but that value could be provided in either cash or with the construction of new facilities and improvements which would then be owned by the Forest Service. Payment could also be made through maintenance efforts or other services at the site. In addition, the review otherwise required under the National Environmental Policy Act is limited to an analysis of the most likely use of the facility under the lease.
The proposed legislation, entitled the Forest Service Flexible Partnerships Act of 2017, has now been submitted to the appropriate Senate Committee for review.
While Secretary of the Interior Ryan Zinke is pointing out that the private sector does a better job of operating campgrounds than a federal agency such as the National Park Service, the Forest Service is quietly removing its private campground operators so that it can run those operations. Secretary Zinke has gone so far as to invite private entities to play a larger role in managing NPS campsites because that could help relieve a significant burden on the agency which is already struggling with a maintenance backlog it cannot afford and shrinking federal funds. “As the secretary, I don’t want to be in the business of running campgrounds. My folks will never be as good as you are,” the Secretary has stated.
Meanwhile, in stark contrast, the Forest Service, which is led by Secretary of Agriculture Sonny Perdue, is removing private companies from the operation of its campgrounds so that it can take over those operations itself. These efforts remove private jobs and increase the demand for more federal agency staff. While the Forest Service initially asserted that it would continue to pay appropriate taxes to the local authorities, it later admitted that does not have to pay such taxes and in fact will not be paying them. The agency also insisted that its plan to replace private jobs with workers who were volunteers would strengthen economic development, but did not explain how that would result. The initial efforts by the Forest Service to take over these privately operated sites was the result of a research paper prepared by a former Forest Service Supervisor who concluded that offering opportunities to the private sector did not protect the public’s interest and that the agency could actually do the work more efficiently. However, no detailed analyses were conducted to support the commonly rejected view that the federal government can perform these types of management tasks more efficiently than the private sector.
Secretary Perdue has not yet directly commented on the Forest Service’s efforts, nor explained why that agency’s views differ from the conclusions reached by Secretary Zinke.