[Senate Hearing 108-441]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-441

                          OUTFITTER POLICY ACT

=======================================================================

                                HEARING

                               before the

                SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS

                                 of the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                                   on

                                S. 1420

 TO ESTABLISH TERMS AND CONDITIONS FOR USE OF CERTAIN FEDERAL LAND BY 
OUTFITTERS AND TO FACILITATE PUBLIC OPPORTUNITIES FOR THE RECREATIONAL 
                     USE AND ENJOYMENT OF SUCH LAND

                               __________

                             MARCH 3, 2004


                       Printed for the use of the
               Committee on Energy and Natural Resources


                                 ______

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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                 PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma                JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho                DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee           RON WYDEN, Oregon
LISA MURKOWSKI, Alaska               TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri            MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana                EVAN BAYH, Indiana
GORDON SMITH, Oregon                 DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky                CHARLES E. SCHUMER, New York
JON KYL, Arizona                     MARIA CANTWELL, Washington

                       Alex Flint, Staff Director
                   Judith K. Pensabene, Chief Counsel
               Robert M. Simon, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
                                 ------                                

                Subcommittee on Public Lands and Forests

                    LARRY E. CRAIG, Idaho, Chairman
                  CONRAD BURNS, Montana, Vice Chairmaa

GORDON SMITH, Oregon                 RON WYDEN, Oregon
JON KYL, Arizona                     DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
LAMAR ALEXANDER, Tennessee           TIM JOHNSON, South Dakota
LISA MURKOWSKI, Alaska               MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri            EVAN BAYH, Indiana
                                     DIANNE FEINSTEIN, California

   Pete V. Domenici and Jeff Bingaman are Ex Officio Members of the 
                              Subcommittee

                 Dick Bouts, Professional Staff Member
                    Scott Miller, Democratic Counsel


                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Brown, David L., Executive Director, America Outdoors, Knoxville, 
  TN.............................................................     8
Craig, Hon. Larry E., U.S. Senator from Idaho....................     1
Davidson, Todd, Executive Director of the Oregon Tourism 
  Commission, and Chair, Western States Tourism Policy Council, 
  Salem, OR......................................................    11
Hughes, Jim, Deputy Director, Bureau of Land Management..........     4
Simon, Dave, Director of Outdoor Activities, Sierra Club, San 
  Francisco, CA..................................................    15
Tenny, David, Deputy Under Secretary for Natural Resources and 
  Environment, Department of Agriculture.........................     3

                                APPENDIX

Additional material submitted for the record.....................    27

 
                          OUTFITTER POLICY ACT

                              ----------                              


                        WEDNESDAY, MARCH 3, 2004

                               U.S. Senate,
          Subcommittee on Public Lands and Forests,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.

    The committee met, pursuant to notice, at 2:32 p.m., in 
room SD-366, Dirksen Senate Office Building, Hon. Larry E. 
Craig presiding.

           OPENING STATEMENT OF HON. LARRY E. CRAIG, 
                    U.S. SENATOR FROM IDAHO

    Senator Craig. Well, good afternoon, everyone. The 
Subcommittee on Public Lands and Forests will be in order. Let 
me thank all of you for being here. We were in hopes that 
ranking member, Senator Wyden, would be attending. I understand 
he has been called off to the Intelligence Committee. You may 
want to make the general assumption, therefore, that he chose 
the Intelligence Committee over a committee that is viewed as 
less intelligent.
    [Laughter.]
    Senator Craig. No, I do not think that is the case at all.
    [Laughter.]
    Senator Craig. Ron and I have worked very well in a 
bipartisan way over the last several years on a good number of 
issues. Last year, I think both of us were extremely proud of 
our healthy forest legislation, and the ability to get that 
through at a time when others were placing substantial odds 
against us achieving such a goal.
    So we do have a reputation of working in a bipartisan way 
to solve the problems addressing critical issues, especially in 
public land management, and we are going to work hard to 
continue to do so.
    As it relates to the Outfitter Policy Act, we see no 
difference in that, and I hope I can gain the support of 
Senator Wyden. We are working closely with him and his staff, 
and the staff on the minority side of the committee now, to be 
able to do just that. I know he wanted to be here to introduce 
a member of the panel, but I will do that in his absence.
    Today, we are hearing testimony on S. 1420, the Outfitter 
Policy Act. This bill is very similar to legislation I have 
introduced in past Congresses. As that legislation did, this 
bill will put into law many of the management practices by 
which the Federal Land Management Agencies have successfully 
managed the outfitter and guide industry on Federal lands for 
many decades.
    Previous hearings and discussion on versions of the 
legislation have helped to shape the issues that are before us 
today in the hearing. We have had the opportunity to examine 
historical practices, and find those that facilitate 
consistent, reliable outfitter services to the public.
    I know our staffs have already been having discussions on 
the legislation, and I would like to propose that we continue 
to work together with the additional ideas we will gain here 
today at this hearing to refine the bill with a commitment to 
completing bipartisan substitute language that can be reported 
from this committee and passed this year.
    It is my intent that we move a bill to the floor this year. 
I am certainly going to work closely with the House to see if 
that is a doable proposition.
    Many outdoor enthusiasts possess the skills to go out on 
their own to recreate and enjoy our public lands, and we must 
protect their access, but many Americans want and seek out the 
skills of experienced commercial outfitters and guides to help 
them enjoy a safe and pleasant journey through our great 
outdoors. The Outfitter Policy Act's primary purpose is to 
ensure accessibility to public lands by all segments of our 
population, and that outfitters and guides across this Nation 
can continue to provide opportunities for outdoor recreation 
for the many families and groups who would otherwise find the 
back country inaccessible.
    Congress has already addressed this issue with respect to 
the National Park System's permits in the National Park Omnibus 
Act of 1998. It is appropriate to now provide consistency in 
national policy by setting similar legislative standards for 
other public land systems, such as the Forest Service and 
Bureau of Land Management lands. These agencies are now without 
congressional guidance, and rely on rules, permit terms and 
conditions, and other approaches that are often left to local 
agency personnel, rather than driven by national policy.
    This Act would provide the basic standards necessary to 
sustain the substantial investment often needed to operate a 
business that provides the level of service demanded by the 
public; however, it also provides the agency ample flexibility 
to adjust use, conditions, and permit terms, all of which must 
be consistent with agency management plans and policies for 
resource conservation. The Outfitter Policy Act strives to 
provide a stable and consistent regulatory climate, which 
encourages qualified entrants to the guide outfitting business, 
while giving agencies and operators clear direction.
    Today, we will hear from the administration, and several 
witnesses representing various perspectives of the outfitters' 
industry. We are eager to hear about your perspectives and 
concerns, and appreciate your assistance in addressing these 
important issues. So now let me welcome all of you to the 
committee, and, of course, welcome Dave Tenny, the Deputy 
Undersecretary for Natural Resources and Environment at the 
Department of Agriculture, Jim Hughes, Deputy Director for the 
Bureau of Land Management at the Department of the Interior. I 
would also like to welcome other witnesses, David Brown, 
executive director of America Outdoors, Dave Simon, director of 
outdoor activities for the Sierra Club, and Todd Davidson, 
chairman of the Western States Tourism Policy Council.
    Again, let me thank all of you very much for your 
attendance today and your effort on behalf of this legislation, 
from the standpoint of your perspective. So as I have said 
earlier, we will attempt to refine the proposed legislation and 
move it out of this committee.
    With that, let me first turn to Deputy Undersecretary for 
Natural Resources and the Environment, Dave Tenny. Dave, 
welcome.

 STATEMENT OF DAVID TENNY, DEPUTY UNDER SECRETARY FOR NATURAL 
      RESOURCES AND ENVIRONMENT, DEPARTMENT OF AGRICULTURE

    Mr. Tenny. Thank you, Mr. Chairman. To begin with, I have 
not had the opportunity to do this yet. I believe Mark has, but 
first and foremost, I want to express our deepest thanks to 
you, and I wish Mr. Wyden were here as well for the wonderful 
work that this committee and you two gentlemen, in particular, 
did on the Healthy Forest Restoration Act. I wish I could have 
lots of time to tell you about the impact that that is having 
on the agency, but it is profound, and we are grateful for that 
vote of confidence, and the policy behind it.
    Turning to the subject at hand. I have only three things 
that I would like to say, in the interest of time. First of 
all, as you know, the Department of Agriculture and the Forest 
Service place great value on the outfitters and guides that 
service the public that use our Federal lands, and especially 
the National Forest System lands. These are among our most 
highly valued constituents and partners. They do a wonderful 
service. They help the public enjoy the land and see the land, 
in some cases where they would otherwise not be able to do. 
They are a very highly valued partner in the use and the 
management of our lands.
    Secondly, I think the agency recognizes that it can always 
do things better, and especially in the area of permit 
administration. We are trying to make improvements, and we are 
in the process of doing things better. We have some distance to 
go. We recognize that. We believe the trajectory we are on is 
the right one, but we want to continue to improve.
    Thirdly, we support this legislation. I think we are 
aligned in our agreement on the policy objectives of this 
legislation, what it wants to accomplish, and we are prepared 
to work with you on it, and address, I think, the mutual 
objectives that we have to improve the way we administer our 
permits for outfitters and guides.
    I could go on and on, but I think that is essentially what 
we want to say. So with that, Mr. Chairman, I will turn the 
time over to my colleagues, and just express again our 
willingness to work with you and the committee to achieve the 
objectives in this bill.
    [The prepared statement of Mr. Tenny follows:]

 Prepared Statement of David Tenny, Deputy Under Secretary for Natural 
          Resources and Environment, Department of Agriculture

    Mr. Chairman, I want to thank you for the opportunity to appear 
before this committee to give you our views on S. 1420, the Outfitter-
Policy Act of 2003, a bill to establish terms and conditions for use of 
certain Federal land by outfitters and to facilitate public 
opportunities for the recreational use and enjoyment of the land. I 
would like to acknowledge the efforts that the committee has put forth 
to utilize our assistance in developing this legislation. We appreciate 
the opportunities that have been afforded to us and we look forward to 
this continued relationship. The Department supports the purposes of 
this legislation and we would be pleased to work with the committee on 
this bill.
    Outfitters and guides, educational institutions, and organizations 
provide public services that are essential to the use and enjoyment of 
our National Forests and Grasslands. The Forest Service recognizes the 
value of these recreation service partners in achieving management 
goals, such as providing access to those who might not otherwise be 
able to use our federal lands, offering interpretation and education 
opportunities, and helping those who lack specialized skills. The 
Forest Service manages the outfitting and guiding program by issuing 
special use permits which authorize this type of activity. We currently 
have approximately 5,500 permit holders who provide very necessary and 
sought-after services. We collect approximately $4 million dollars each 
year in outfitter-guide permit fees.
    We understand and support efforts to improve consistency and 
fairness in our application of policy and in the administration of 
permits that this legislation addresses. The Forest Service is 
currently developing policy that incorporates many of the provisions 
contained in this legislation. Policy is being developed for an up to 
ten-year term for outfitting and guiding permits to be consistent with 
the U.S. Department of the Interior. We are examining ways to reduce 
the layers of fees that some outfitters and guides face when entering 
areas that have additional fees, such as entrance or facility use fees.
    We are working jointly with the Department of the Interior in 
developing a joint Forest Service and BLM permit application to improve 
customer service and make the permitting process more efficient and 
effective. A suggestion to enhance Service First opportunities would be 
to incorporate into this legislation a provision to give the Forest 
Service and BLM authority to issue a single permit for outfitting and 
guiding which would be valid on lands administered by both agencies and 
be under the authority of the lead agency that issues the permit. This 
would further reduce the amount of paperwork and permit authorizations 
required for outfitters and guides that operate on land under both 
jurisdictions.
    The challenge to us is to provide outfitting and guiding 
opportunities that are efficient and successful while also providing a 
pleasant, safe, and healthy visitor experience that protects the 
environment and addresses public needs. We believe that S. 1420 
contains many of the provisions that may help us to accomplish these 
goals. We welcome the opportunity to work with the committee to advance 
these objectives.
    Thank you for the opportunity to share the Department's view on 
this legislation, and I will be happy to answer any questions you may 
have.

    Senator Craig. Well, Dave, thank you very much.
    Jim, I will turn to you. Deputy Director, BLM, Jim Hughes.

           STATEMENT OF JIM HUGHES, DEPUTY DIRECTOR, 
                   BUREAU OF LAND MANAGEMENT

    Mr. Hughes. Mr. Chairman, thank you for this opportunity to 
present the views of the Department of the Interior on S. 1420, 
the Outfitter Policy Act. In the interest of time, I will 
summarize the remarks that we have submitted for the record.
    We, too, believe outfitters and guides provide key services 
to the visitors on the public lands. Under permits issued by 
Department agencies, outfitters and guides offer a wide variety 
of activities for outdoor recreation, such as hunting, river 
rafting, back country horse trips, and wilderness adventures. 
Outfitters and guides provide services and opportunities to 
populations that may not otherwise gain access to public lands, 
including important educational and interpretative services.
    In fiscal year 2003 alone, the BLM issued over 3,000 
permits to outfitters and guides for activities across our 261 
million acres of public lands. This generated over $3 million 
in that fiscal year. We understand and appreciate the economic 
impact of these activities, as the majority of the outfitters 
and guides are individuals or small businesses whose services 
are critical elements of local rural communities.
    The majority of the Department of the Interior outfitter 
and guide permits that this bill addresses are issued by the 
Bureau of Land Management. Ensuring consistent application of 
our permitting system, a safe and satisfying visitor 
experience, a mutually beneficial working relationship with 
outfitters and guides, and preservation of natural and historic 
resources are priorities for the BLM recreation program. Other 
department agencies also issue permits to outfitters and 
guides, as you have already mentioned.
    The BLM has taken administrative action on many of the 
issues raised in S. 1420. For example, just recently, we 
announced updated rules for special recreation permits, which 
changed the potential tenure of permits from the previous 5 
years, to as many as 10 years. This change was made to improve 
the opportunities for outfitters to engage in and invest in 
successful business ventures, while giving land managers the 
flexibility to respond to changes and resource conditions, and 
also unforeseen changes in public demand, or other reasonable 
and substantial changes, such as management and activity plan 
updates.
    The Department supports the purposes of S. 1420, especially 
the provisions related to permit performance evaluation, permit 
renewal, revocation and suspension, and liability. We share a 
common goal to develop consistent terms and conditions, while 
facilitating public opportunities for recreation use and the 
enjoyment of public lands.
    The Department does have concerns with some of the 
provisions in the current bill. We look forward to working 
closely with the committee to address them, so that we can 
provide the best services to both outfitters and visitors on 
public lands.
    The Department of the Interior agencies strive to work in 
the most reasonable way to accommodate the needs of running and 
outfitting guide services. The Department also must manage the 
outfitting programs to provide a fair market return to the 
American public, and ensure that the fee system is consistently 
and fairly applied to all permitees.
    We support the concept of allowing flexibility in the fee 
structure to account for unique situations or regional 
differences, we want to talk to the committee about section 5, 
as drafted. We may need a little more guidance, and maybe some 
report language could help us on this section.
    Under this legislation, the Department would have 180 days 
to act on the transfer of an outfitter permit. There may be any 
number of extenuating circumstances requiring agencies to take 
more than 180 days outlined in the bill. We think more 
flexibility for these transfers better ensures the safe and 
responsible use of our public lands. Finally, we would like to 
clarify some definitions and other technical issues in S. 1420.
    In conclusion, Mr. Chairman, the Department will continue 
to work closely with the outfitters and guides to improve 
customer service and resource management. We would like to work 
with the committee to address the issues raised in this 
statement, as well some technical matters. We thank you for the 
opportunity to share our views on S. 1420. I will be happy to 
answer any questions you may have.
    [The prepared statement of Mr. Hughes follows:]

          Prepared Statement of Jim Hughes, Deputy Director, 
                       Bureau of Land Management

                              INTRODUCTION

    Mr. Chairman, thank you for the opportunity to present the views of 
the Department of the Interior (Department) on S. 1420, the Outfitter 
Policy Act. The Department of the Interior shares the Committee's 
interest in enhancing opportunities for recreational use of the 
nation's public lands.

                               BACKGROUND

    Outfitters and guides provide key services to visitors on the 
public lands. Under permits issued by Department agencies, outfitters 
and guides offer a wide variety of activities for outdoor recreation, 
such as hunting, river rafting, backcountry horse pack trips, and 
wilderness adventures. We do not underestimate the value of these 
services. Indeed, we view outfitters and guides as important partners 
who provide valuable services that contribute to ensure safe and 
enjoyable experiences for those who visit and recreate on our public 
lands. They cater to those who view the public lands as gateways to 
adventure and discovery. Outfitters and guides provide services and 
opportunities to populations that may not otherwise gain access to 
public lands, including important educational and interpretive 
services. Of the approximately 53 million visitors in 2003, we estimate 
that about 1 million employed outfitters and guides while recreating on 
BLM-managed lands. In FY 2003 alone, the BLM issued over 3000 permits 
to outfitters and guides for different types of recreational activities 
across 261 million acres of public land. The BLM collected $3 million 
in fees from these permits in FY 2003.
    We recognize the important role we must play not only in fostering 
the development of these opportunities for our visitors, but also in 
making every effort to ensure that the process for outfitters and 
guides is efficient and fair while protecting our valuable resources. 
We also understand and appreciate the economic impact of these 
activities as the majority of outfitters and guides are individuals or 
small businesses whose services are critical elements of local 
economies.
    The majority of outfitter and guide permits this bill addresses are 
issued by the Bureau of Land Management (BLM). The BLM permitting 
system is codified in regulations (43 CFR 2932) and is managed through 
a Manual and Handbook. Ensuring consistent application of our 
permitting system, a safe and satisfying visitor experience, a mutually 
beneficial working relationship with outfitters and guides, and 
preservation of natural and historic resources, are priorities for the 
BLM recreation program.
    Other Department agencies also issue permits to outfitters and 
guides. At the U.S. Fish and Wildlife Service, most outfitter or guide 
permits are handled on a case-by-case basis, considering biological 
soundness, effects on other refuge programs, and public demand. The 
Bureau of Reclamation manages outfitters and other visitor services 
through commercial concession operations under a licensing authority 
using a special recreation permit.

                            BLM INITIATIVES

    The BLM has taken administrative action on many of the issues 
raised in S. 1420. For example, in order to provide better customer 
service, reduce administrative paperwork, and provide consistent law 
enforcement on BLM-managed lands, the BLM issued updated rules for 
``Recreation Use Permits'' and ``Special Recreation Permits'' on 
February 6, 2004. One key provision changes the potential tenure of 
permits from the previous 5 years to as many as 10 years. This change 
was made to improve the opportunities for outfitters to engage in, and 
invest in, successful business ventures, while giving land managers the 
flexibility to respond to changes in resource condition, unforeseen 
changes in public demand, or other reasonable and substantial changes, 
such as management and activity plan updates.
    To help address cross-jurisdictional situations, the BLM and the 
Forest Service have developed cooperative arrangements to improve 
customer service. In areas where an outfitter or guide is crossing 
Federal land jurisdictions, the BLM and Forest Service have worked to 
ensure permittees are only paying for the time spent on public lands 
and there is no duplication of fees. In some areas we have coordinated 
management of a resource so that one agency manages the permitting, and 
outfitters and guides need interact with only one agency. Examples of 
this can be found on the Rogue River in Oregon and the Kern River in 
California.
    Also, the BLM provides discounts on standardized fees based on 
individual circumstances and has begun to simplify auditing 
arrangements with willing industry partners.

                                S. 1420

    The Department supports the purpose of S. 1420, especially the 
provisions related to permit performance evaluation; permit renewal, 
revocation and suspension; and liability. We share a common goal to 
develop consistent terms and conditions while facilitating public 
opportunities for recreational use and enjoyment of public lands. As 
discussed earlier, the Department has recently developed new 
regulations that we believe are consistent with the purposes of this 
legislation. The Department does have concerns with some of the 
provisions as outlined in the current bill. We look forward to working 
closely with the Committee to address them so that we can provide the 
best services to both outfitters and visitors on our public lands.
    First, the Department of the Interior agencies strive to work in 
the most reasonable way to accommodate the needs of running an 
outfitting or guide service. The Department also must manage the 
outfitting programs to provide a fair market return to the American 
public and ensure that the fee system is consistently and fairly 
applied to all permittees. We support the concept of allowing 
flexibility in the fee structure to account for unique situations or 
regional differences, but we are concerned that Section 5 of S. 1420, 
as drafted, does not provide sufficient guidance on this point. We 
would like to work with the Committee and sponsor of the bill to 
clarify how or when the bureaus should consider financial obligations 
or reasonable business opportunities as a part of determining fees. We 
also believe it is important to more clearly define the terms and 
expectations to ensure that the bureaus can precisely implement the 
legislation and carry out congressional intent.
    Second, under this legislation the Department would have 180 days 
to act on the transfer of an outfitter permit. There may be any number 
of extenuating circumstances requiring agencies to take more than the 
180 days outlined in the bill. We think more flexibility for permit 
transfers better ensures the safe and responsible use of the public 
lands. Again, we look forward to working with the Committee to address 
this concern with a time frame that addresses these concerns and 
ensures fairness to operators.
    We believe the definition of ``Commercial Outfitted Activity,'' in 
S. 1420, may inadvertently include activities not intended to be 
covered by this legislation. For example, there are certain academic 
activities involving grade school, high school or college students that 
take place on public lands which are designed to further one's 
knowledge and understanding of resource and science-related issues that 
could conceivably fall under the definition of a ``Commercial Outfitted 
Activity.'' We would also like to clarify the provisions of the bill 
concerning two-year temporary permits. We suggest temporary permits 
should have terms not to exceed one year. If an outfitter's performance 
is found to be satisfactory, a second one year extension is routinely 
granted. This method has worked well in the past and provides us the 
flexibility to provide the highest standards in visitor protection and 
resource management.
    Finally, many of the important outfitted activities the Department 
manages occur on waterways. Including Federally-managed waterways in 
the definition of ``Federal land'' would be very beneficial in 
developing comprehensive legislation.

                               CONCLUSION

    The Department will continue to work closely with the outfitters 
and guides to improve customer service and resource management. We look 
forward to working with the Committee to address the issues raised in 
this statement as well as some technical corrections. Thank you for the 
opportunity to share the Department's views on S. 1420. I will be happy 
to answer any question you may have.

    Senator Craig. Jim, thank you very much.
    We have been joined by Senator Craig Thomas of Wyoming.
    Now, let me turn then to David Brown, executive director of 
America Outdoors. You are welcome before the committee.

       STATEMENT OF DAVID L. BROWN, EXECUTIVE DIRECTOR, 
                AMERICA OUTDOORS, KNOXVILLE, TN

    Mr. Brown. Mr. Chairman and members of the subcommittee, 
thank you for the opportunity to testify today in support of 
the Outfitter Policy Act. I will summarize my written 
testimony, which I ask that you include in the record.
    As you identified, outfitters are an important component of 
the agency's recreation delivery system, with several thousand 
permits issued for outfitting and guiding among the agencies 
covered by the bill. We support S. 1420 for the following 
reasons. One, as you identified, Senator, the National Park 
Service has done the same in the National Park Omnibus Act of 
1998, and outfitting and guiding is far more significant in BLM 
and Forest Service lands. It is an important component of the 
National Park Service, but not quite as prominent as it is in 
the parks.
    S. 1420 is in the public interest, because it makes 
qualification service to the public resource protection the 
primary criteria for issuing permits for outfitting and 
guiding, and in doing so, the Outfitter Policy Act encourages 
career-oriented outfitters, rather than businesses or 
outfitters with a short-term perspective. We think that is in 
the public interest and in the interest of the resources as 
well.
    Some of the provisions that provide this long-term 
perspective are the opportunity to earn renewal of the permit. 
I want to stress that's earned, and not guaranteed. 
Authorization of a permit for a term of up to ten years and 
transfer of the permit with the sale of the business is subject 
to approval of the agency.
    Of equal importance, the bill provides the agencies with 
the authority to revoke permits for any significant reason that 
requires due process, and that is a very important component of 
the bill.
    While the agencies have taken steps administratively to 
improve their management of outfitting and guiding, in the 
hierarchy of authorities, agencies often argue that policy is 
not legally binding. Just last year, for example, the Forest 
Service, attempted to revise their permit language, which 
included changes in their permitting policy.
    These changes would have destabilized outfitter and guest 
range operations throughout the Nation. Their argument was that 
the Code of Federal Regulations trumped the outfitter and guide 
permitting policy, which had been in place since 1994.
    The bottom line is that we have modern-day small businesses 
operating on public lands, with a tenuous regulatory authority, 
that is sometimes difficult to enforce in the field, and S. 
1420 codifies this policy in a way that we believe is in the 
public interest.
    Last, but not least, currently, outfitter permittees are 
facing four separate fee initiatives within the Forest Service: 
Fair market value for permits, road fees, fee demo, and cost 
recovery. We are not likely to survive the sum of these fees, 
in addition to the burden of local taxes, so we believe some 
stronger language is needed to forestall potential fee bidding 
for permits, or set a cap on the total fee burden.
    This bill makes some good progress in that direction, but 
one concern we have is that the language may allow permit fees 
to vary from resource to resource.
    Thank you for allowing me to testify on this important 
bill, and I look forward to answering any questions that you 
might have.
    [The prepared statement of Mr. Brown follows:]

       Prepared Statement of David L. Brown, Executive Director, 
                    America Outdoors, Knoxville, TN

    Mr. Chairman and members of the committee, thank you for giving me 
the opportunity to testify on S. 1420, the Outfitter Policy Act. We 
very much appreciate the committee's attention to the issues addressed 
by this important legislation. As you know, this bill is important to 
the availability of high quality recreation and travel services to the 
public. It is also important to the rural economies in areas in and 
around federally-managed lands and waters, which are dependent on 
travel and tourism.
    We offer our strong support for S. 1420. We are fully prepared to 
work with the committee and agencies to make reasonable modifications 
where necessary.
    When I use the term outfitter and guide in this testimony, I am 
referring to those businesses, institutions, organizations and 
individuals who provide professional outdoor recreation services or 
outdoor educational experiences to the public for a fee and who are 
required to have an authorization from the federal agencies for that 
activity.
    We believe an outfitter bill should further the partnership between 
permittees and federal agencies in a manner that serves the public's 
interest. Outfitters and guides make the backcountry, which comprises 
about 30% of our nation, available to those taxpaying citizens who do 
not have the equipment, skills or time to outfit their own trips. They 
provide healthy recreation and vacation opportunities that inspire, 
renew and revitalize Americans. They create important economic benefits 
to rural communities, and they teach important lessons about 
appropriate use and enjoyment of our natural heritage.
    Why is a bill governing outfitting and guiding in national forests 
and on public lands necessary?
    1. An outfitter bill should create consistent policies for the 
administration of outfitter and guide permits. These provisions should 
provide a reasonable assurance to the public that outfitter permittees 
will be qualified to provide the services they offer to the public. At 
the same time, the bill should provide for due process in permit 
administration. It should authorize the agency to reward quality 
operators and remove those who disregard the resource or public safety. 
S. 1420 does that by allowing the agencies to revoke permits for any 
significant reason, but requires the agency to follow due process.
    2. There is no specific legislation that addresses the agencies' 
issuance and administration of outfitter and guide permits. Congress 
has established statutory standards for guides and outfitters operating 
in National Parks. In contrast, there is no comparable congressional 
guidance regarding the very same activities on Forest Service and BLM 
lands. These agencies issue far more outfitter permits than are issued 
in Parks. An outfitter bill would fill this gap, establish comparable 
policies on other federal lands, and benefit the public.
    3. The administration of outfitter and guide permits is currently 
guided by agency policies, which are sometimes overlapping, ignored or 
ephemeral. For example, in 2003 the Forest Service drafted new permit 
language for outfitting and guiding, which was based, according to one 
agency permit manager, on a permit designed to authorize gas lines and 
similar developments. It contained strict liability provisions and 
called for setting fees through bidding for permits with a term of five 
years or less. No quality-oriented business providing visitor services 
can operate successfully under these terms and conditions. From time to 
time, there are also deviations from the policy in the field because 
agency personnel often do not believe the policy is legally binding.
    4. Agency fee policies are overlapping and unpredictable. The 
Forest Service has four separate fee policies currently in play:

   fair market value for permit fees initiative;
   the recreation fee demonstration program;
   cost recovery fees for permit administration;
   and in some areas fees for accessing forest roads.

    While the agency is making some progress in coordinating these fee 
policies, the total fee burden on permittees is still unpredictable 
because there is no legally binding policy to provide guidance to the 
field. Fee demo and road fees are in addition to permit fees and they 
are open-ended. For example, in March 2003, using the unfettered 
authority under the recreation fee demonstration program, a BLM 
employee announced that the agency was quadrupling fees on the 
outfitted public visiting the Deschutes River in Oregon. Because prices 
had been set and reservations taken, outfitters were forced to absorb 
the additional costs. The Forest Service's official fee policy bases 
permit fees on revenues from services rendered outside forest 
boundaries if that service is packaged with services delivered in the 
forest. If a week-long trip spends one-half day in a national forest, 
the fee to the Forest Service is based on the price of the entire week 
long trip. Even with a discount for off Forest activities, the fee is 
disproportionately higher for that one-half day of activity included in 
a travel package, than the same activity offered by a permitted 
outfitter as a stand-alone activity.
    These are among the reasons we believe an outfitter bill is 
necessary.
Comments About Specific Provision of S. 1420
    We offer our sincere thanks to Senator Craig and members of the 
committee who have taken their time to craft this legislation. I will 
identify several elements of the bill that are essential to its 
success.
    Sections 1-4 are appropriate and important provisions. I understand 
that some groups have a concern about the language in ``Section 2 
Purposes'' that refers to the purpose of ``establishing a program for 
permitting'' that ``facilitates an administrative framework and 
regulatory environment that makes it possible for outfitters to engage 
in a successful business venture.'' We believe this language is 
appropriate and does not put the welfare of the business over resource 
protection or other users because it applies only to the 
``administrative'' and ``regulatory framework'', not the management 
decisions that determine the amount and types of outfitted activities. 
We understand that this language simply tells the agency to consider 
the financial impact on the permittee when administering fees and 
stipulating operating requirements. It, however, does not prevail over 
resource protection or the management plan.
    We support a 10-year permit term, as it is the same term authorized 
by the 1998 Parks Concessions Act. As identified, ``new outfitters'' 
are probationary, including ``new outfitters'' who obtain a permit 
through a transfer after buying a business. We suggest a midterm review 
for 10-year permits to enable the agency and outfitters to review the 
utilization of the permit and to make modifications as may be 
appropriate.
    Section 5 Fees. There are several important provisions in Section 
5. The definition of ADJUSTED GROSS RECEIPTS resolves the issue of fees 
charged for off-Forest activities. ``(b)'' provides direction on 
``other fees'' to prohibit them from ``adversely'' affecting the 
ability of the authorized outfitter to provide quality services at 
reasonable rates. We support the language that prohibits more than one 
charge for a user day to avoid the double billing that occurs when a 
trip crosses agency boundaries.
    We believe bill has the potential to remove the current 3% of gross 
standard for permit fees in national forests and may result in a 
different fee from one Forest to the next. While the guidelines on fees 
are excellent, these guidelines are likely to be interpreted 
differently from region to region. Outfitters need a consolidated fee 
and consistent fee policy that clearly specifies the maximum fee burden 
for all fees and takes into account fees and taxes levied by local 
governments. This may be accommodated by authorizing a fee schedule, 
perhaps by type of activity, as a per day charge or as a percent of 
adjusted gross revenues. We strongly believe that 3% is an appropriate 
fee level for these seasonal operations, who are often paying local and 
state taxes.
    We believe language in the bill should expressly prohibit fee 
bidding as method for issuing permits or determining fee amounts. Why? 
S. 1420 or a similar outfitter bill would authorize a permit, not a 
contract. A contract provides specific compensable rights that are not 
available in a permit. Furthermore, even NPS concessions law for 
outfitters makes fees subordinate to resource protection, experience 
and quality service and it has provisions that require the same fee for 
all permittees offering the same or similar service in an area.
    An additional concern on fees is in the section on ``Processing 
Fees and Costs, which provides for cost recovery for ``monitoring''. 
Monitoring costs should be covered by the permit fee and should not be 
an additional charge. This is consistent with existing agency direction 
on cost recovery.
    Section 6. Liability and Indemnification. We generally concur with 
the language in Section 6. The cost of liability insurance has 
quadrupled in recent years, irrespective of claims. This increased cost 
is threatening the viability of some seasonal operations. Insurance has 
also become increasingly difficult to obtain for specialty markets, 
like outfitting and guiding, where the premium volume is relatively 
low. Therefore, the language in the bill, allowing waivers for claims 
resulting from the inherent risks of outdoor recreation, is crucial. 
However, the provision in (2) that gives the agencies the discretion to 
eliminate waivers seems to contradict the intent of the section.
    Sections 7, 8, 9, 10. We generally support the intent and language 
in these sections of the bill. Allocation of use is defined as a type 
of use, an amount of use or an area of operation. Therefore, the bill 
does not require a specific allocation of use where use has not been 
allocated. Section 7 also allows the agency to adjust use associated 
with the permit during the term that result

   from changes in resource management plans, or
   requirements under other laws, provided the agency documents 
        the need for those changes.

    We also believe that the agency can include conditions in the 
permit that require performance on the permit and the use associated 
with it. Permitted use may be subject to adjustment during the mid-term 
review for non performance. However, the permittee should not be 
punished for economic disruption, natural disasters or difficulties 
created by the agencies' own actions.
    It is also important to note that a ``new outfitter'' who receives 
a permit as the result of a transfer has to be qualified by the agency 
and is subject to a ``probationary period'' of two years.
    We applaud the performance evaluation procedures, the due process 
described by the bill, and the ``earned'' renewal provisions under 
Section 8. Permit renewal is earned, not guaranteed. When the outfitter 
meets the conditions prescribed by the agency in the permit, the permit 
is renewed. If the permittee is not judged to by ``good'' over the 
term, they lose their option to renew. This language will encourage 
motivated, career minded individuals to put all their energies into 
serving the public and caring for the resource.
    Sections 13-16. We support the language in Section 13, which allows 
the agencies to retain the fees from permitted activities provided some 
language limits the total fee burden.
    Section 17. We also recognize and support the language in Section 
17, which establishes that the bill does not create a property right 
for the permitted outfitter.
    The language that exempts ``activities'' for academic credit may 
need some additional work. We understand the intent. However, we have 
recently learned that some outdoor skills training offered to students 
by ``accredited'' outdoor educators are also provided to the general 
consumer outside of any degree program. Since these courses are also 
approved for academic credit, students in pursuit of academic degrees 
participate side by side with general consumers. Yet, the language may 
exempt the ``accredited academic institution'' from regulation and fees 
for all users, consumers and students.
    Thank you again for considering my testimony. I urge you to pass 
this important legislation in this session of Congress.

    Senator Craig. David, thank you very much.
    Now, let me move to Todd Davidson, chairman of the Western 
States Tourism Policy Council. Welcome.

 STATEMENT OF TODD DAVIDSON, EXECUTIVE DIRECTOR OF THE OREGON 
 TOURISM COMMISSION, AND CHAIR, WESTERN STATES TOURISM POLICY 
                       COUNCIL, SALEM, OR

    Mr. Davidson. Thank you, Mr. Chairman, members of the 
committee. For the record, my name is Todd Davidson, executive 
director of the Oregon Tourism Commission, and chair of the 
Western States Tourism Policy Council. I am grateful for the 
opportunity to testify today on S. 1420, the Outfitter Policy 
Act, and I appreciate the committee's attention to the issues 
that are addressed by this important legislation.
    The Western States Tourism Policy Council offers our strong 
support for S. 1420. The Western States Tourism Policy Council 
is a consortium of 13 Western State tourism offices, including 
Alaska, Arizona, California, Colorado, Idaho, Hawaii, Montana, 
Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. 
Since our establishment, the mission of the Western States 
Tourism Policy Council has remained to advance understanding 
and increase support for public policies that enhance the 
positive impact of travel and tourism on economies and 
environments of States and communities in the West. This is why 
I am before you today in support of S. 1420, the Outfitter 
Policy Act.
    In the Western United States, our tourism product is 
heavily dependent upon public lands and waters. Natural beauty, 
recreation, outdoor adventure, scenic by-ways, and other 
activities and attractions tied to public resources are key 
components of what each of our respective States has to offer 
our domestic and international visitors.
    The bottom line, as you noted, Mr. Chairman, is that many 
of our visitors dream of a great outdoor adventure in the West, 
but have little or no experience in actually running a river, 
or casting a fly, or climbing a rock cliff, or leading a horse 
backing trip. They want and are willing to pay for the 
assistance of a professional outfitter guide.
    The members of the Western States Tourism Policy Council 
are marketing arms for their States' tourism industry. We are 
engaged in advertising, and special promotions, and media 
relations, publications, web sites, and a host of other 
advertising and marketing programs. Each of us is able to 
invite visitors to our respective States; yet, as State tourism 
offices, we are selling an image. We are creating opportunities 
for sales. In the end, it is the tour operators, the hotels, 
the attractions, the outfitter guides, and other private 
businesses in the tourism industry that close the sale, and 
provide the service.
    These outfitter guide businesses provide recreation and 
vacation opportunities, create important economic benefits to 
rural communities, and provide an environmental ethic about 
appropriate and use and enjoyment of our natural heritage to 
visitors that are desiring a greater connection with their 
natural environment. Therefore, their stability as a business 
is crucial to the stability of the tourism economy in the West.
    In short, S. 1420 seeks to stabilize the business 
environment of outfitter guides. I have a few thoughts in terms 
of the renewal provisions of the bill, and how it would affect 
the stability of outfitter guide businesses.
    First, currently, all outfitters operate on special use 
permits that range from 1 to 5 years. As the permit term draws 
near the end, it is not uncommon for outfitting businesses to 
decide to forestall its capital expenditures such as new rafts 
and vehicles, or spending on guide training. This uncertainty 
undermines the quality of services to visitors to public lands. 
I know of an outfitter guide company that operates under five 
different Forest Service and BLM permits, all of which have 
different termination dates, so they are always operating in an 
environment of uncertainty.
    Secondly, like many small businesses, their ability to grow 
depends on their ability to find some financing. Financial 
institutions look at many factors when determining to qualify a 
loan, and presently their ability to demonstrate that their 
permits are renewed as a matter of administrative policy has 
pacified lender uneasiness regarding business stability, but if 
policy changed whereby there would be little or no assurance of 
renewal, their ability to borrow would be significantly 
reduced.
    Finally, introducing fee bidding into the permit renewal 
process would significantly change the industry as it is today. 
Fee bidding for permits would allow large corporations to buy 
out these rural-based businesses, using a lost leader budgeting 
process. As mentioned above, the uncertainty and instability of 
operating from one permit period to the next would only be 
exaggerated. The stability of outfitter guides is important to 
the long-term stability of the tourism industry in Oregon, and 
to every State in the West.
    S. 1420, the Outfitter Policy Act, provides stability to 
outfitter businesses, so that they can provide the exemplary 
service, access to public lands, and protection and 
sustainability of public resources that we have all come to 
expect and to depend upon.
    Thank you again for considering my testimony, and I urge 
you to pass this important piece of legislation this session. 
Thank you.
    [The prepared statement of Mr. Davidson follows:]

 Prepared Statement of Todd Davidson, Executive Director of the Oregon 
 Tourism Commission, and Chair, Western States Tourism Policy Council, 
                               Salem, OR

    Mr. Chairman and members of the committee, thank you for giving me 
the opportunity to testify on S. 1420, the Outfitter Policy Act. I 
appreciate the committee's attention to the issues addressed by this 
important legislation. As you know, this bill is important to the 
availability of high quality recreation and travel services to the 
public. It is also important to the rural economies in areas in and 
around federally managed lands and waters, which are dependent on 
travel and tourism.
    The Western States Tourism Policy Council offers our strong support 
for S. 1420. The Western States Tourism Policy Council (WSTPC) is a 
consortium of thirteen western state tourism offices, including Alaska, 
Arizona, California, Colorado, Idaho, Hawaii, Montana, Nevada, New 
Mexico, Oregon, Utah, Washington and Wyoming. Inspired by the 1995 
White House Conference on Travel and Tourism, which urged greater 
regional attention to the interrelationships between Federal lands, the 
environment and tourism, eight western states in 1996 formed the WSTPC. 
Since its establishment, the mission of the WSTPC has remained: To 
advance understanding and increase support for public policies that 
enhance the positive impact of travel and tourism on the economies and 
environments of states and communities in the West.
    In September 1997, a notable Memorandum of Understanding was signed 
between the then eight states of the WSTPC and nine Federal agencies, 
including the National Park Service, the Bureau of Land Management, the 
Bureau of Reclamation, the Fish & Wildlife Service, the Bureau of 
Indian Affairs, the USDA Forest Service, the U.S. Army Corps of 
Engineers, the Environmental Protection Agency and the Federal Highway 
Administration. The signatories pledged to share information and 
provide mutual support and cooperation on common programs and projects. 
So successful was the MOU that it was renewed and expanded in November 
2001, between now eleven western states and two additional Federal 
agencies, the Department of Commerce Office of Travel and Tourism 
Industries and the USDA Natural Resources Conservation Service. At 
least two or three times each year, the WSTPC and its Federal partners 
hold joint meetings to discuss issues and concerns and to plan 
projects, especially regional intergovernmental conferences.
    The WSTPC has always had as its primary mission supporting public 
policies that enable travel and tourism to have a more positive impact 
in the West. The WSTPC strategy has been to identify emerging issues 
and determine their likely impact on western tourism, to work with 
allies and friends in the industry and in Congress and government 
agencies and to communicate its views and positions to policy-makers.
    This is why I am before you today in support of S. 1420, the 
Outfitter Policy Act.
    In the western United States, our tourism product is heavily 
dependent on public lands and waters. Natural beauty, recreation, 
outdoor adventure, scenic byways and other activities and attractions 
tied to public resources are key components of what each of our 
respective state's has to offer our domestic and international 
visitors.
    In Oregon, for example, nearly 50% of primary and secondary travel 
markets see Oregon as an exciting place to visit, a great place for a 
family vacation and offers great sightseeing opportunities. These are 
three of the most important travel motivators in generating interest to 
visit a destination. Furthermore, nearly 60% of our potential visitors 
see Oregon as a destination that offers great recreation activities, 
72% feel Oregon has great state and national parks, and 75% feel Oregon 
has truly beautiful scenery.
    In terms of recreational pursuits, the residents of our target 
markets tell us that Oregon offers specific activities that interest 
them:

                  71% say we offer great fishing
                  66% feel we offer great river rafting
                  57% say we are great for kayaking
                  68% say we offer great backpacking

    And, while there are numerous others mentioned in the research, the 
fact is that many of our visitors dream of great outdoor adventures in 
Oregon but have little or no experience in actually running a river, 
casting a fly, or climbing a rock cliff. They want and are willing to 
pay for the assistance of a professional outfitter guide.
    The member states' tourism offices of the Western States Tourism 
Policy Council are marketing arms for their state's tourism industry 
engaged in advertising, special promotions, media relations and 
publications, websites and a host of other advertising and marketing 
programs. Each of us is able to invite visitors to our respective 
states, but we are selling an image. In the end, it is the tour 
operators, hotels, attractions, outfitter guides and other small 
businesses in the tourism industry that close the sale and provide the 
service. Their stability as a business is crucial to our state's 
economic stability.
    Furthermore, we believe this bill will further the partnership 
between permittees and federal agencies in a manner that serves the 
public's interest. As noted above, outfitters and guides make the 
backcountry, which comprises nearly 50% of the western lands of our 
nation, available to those citizens who do not have the equipment, 
skills or time to outfit their own trips. They provide recreation and 
vacation opportunities, create important economic benefits to rural 
communities, and they provide the environmental ethic about appropriate 
use and enjoyment of our natural heritage to visitors desiring a 
greater connection with their natural environment.
    In short, this S. 1420 seeks to stabilize the business environment 
of outfitters who utilize our nation's public lands and waterways. I 
have listed below a few thoughts in terms of the renewal provision of 
the bill and how it would affect the outfitter guide business.
    Currently, all outfitters operate on Special Use Permits ranging 
from 1 year to 5 years. As the permit terms draw near it is not 
uncommon for outfitting businesses to forestall capital expenditures 
such as new rafts, vehicles, life jackets and safety equipment as well 
as spending on guide training, management, continuing education, etc. 
The uncertainty of renewal weighs on many of their management 
decisions; in fact, I have been told that it is the greatest concern as 
they consider whether to continue to invest in their outfitting 
business. This uncertainty undermines the quality of services to 
visitors to public lands. A reasonable and fair renewal process removes 
that uncertainty and provides a regulatory scheme that will protect the 
public's interests. I know of an outfitter guide company that operates 
under five different Forest Service and BLM permits, all of which have 
different termination dates. In short, they are always operating in an 
environment of uncertainty.
    Like many small businesses their ability to grow depends on their 
ability to borrow money. Financial institutions look at many factors 
when determining to qualify a loan. Presently, their ability to 
demonstrate that our permits will be renewed as a matter of 
administrative policy has pacified the lender uneasiness regarding 
business stability. It is not the best situation, but in most cases 
they have been able to pass their muster. If policy changed whereby 
there would be less, or no, assurance of renewal, their ability to 
borrow would be wiped out.
    Introducing Fee Bidding into the Permit renewal process would 
significantly change the industry as it is today. Fee bidding for 
permits would allow large corporations to buy up our rural based 
businesses using lost leader budgeting. Some major corporations have 
indicated a preliminary interest in this and have begun to look at 
adventure-based businesses to augment their timeshare products, 
offering adventure as part of the ``vacation club'' concept. As 
mentioned above, the uncertainty and instability of operating from one 
permit period to the next would be further exaggerated if permits were 
put up for auction at the end of each permit term. A further 
degradation of outfitted services would inevitably result.
    The stability of outfitter guides is important to the long-term 
stability of the tourism industry in Oregon and each of the western 
states. S. 1420, the Outfitter Policy Act, provides stability to 
outfitter businesses so that they can provide the exemplary service, 
access to public lands, and protection of public resources that we have 
all come to expect and depend upon.
    Thank you again for considering my testimony. I urge you to pass 
this important legislation in this session of Congress.

    Senator Craig. Todd, thank you very much.
    Now, let us turn to Dave Simon, director of outdoor 
activities for the Sierra Club. Welcome to the committee.

STATEMENT OF DAVE SIMON, DIRECTOR OF OUTDOOR ACTIVITIES, SIERRA 
                    CLUB, SAN FRANCISCO, CA

    Mr. Simon. Thank you, Mr. Chairman. Mr. Chairman, members 
of the subcommittee, thank you for the opportunity to testify 
on behalf of the Sierra Club's 700,000 members in support of 
outfitter reforms, but in opposition to the Outfitter Policy 
Act in its present form.
    The Sierra Club acknowledges the valuable services that 
outfitters provide in enabling a segment of the public to use 
and enjoy our public lands, and that many outfitters have a 
commitment to protect natural resources. The Sierra Club has a 
long history of collaboration with outfitters in protecting our 
natural heritage for the current and future enjoyment of all 
Americans.
    The Sierra Club also runs its own outdoor activity program, 
with the mission of taking people into the outdoors to inspire 
them to protect the natural world. In running this program, we 
experience firsthand many of the same issues encountered by the 
outfitters when working with land agencies, and we believe that 
legislation can be drafted that effectively addresses the very 
real concerns of the outfitter community.
    As was introduced, S. 1420 does address some real problems, 
but does not appropriately balance the needs of the land, the 
public, the land agencies, and the outfitters. The bill would 
burden land managers with providing commercial outfitters a 
reasonable opportunity to engage in successful business. The 
bill would elevate commercial outfitter permits to a legal 
status greater than other kinds of Federal permits, by 
loosening restrictions on permit sale and transfer, and by 
restricting the ability of land managers to modify permits.
    In areas of high recreational demand, where that requires 
restrictions on public access, the bill would compel land 
managers to provide a disproportionate share of scarce public 
resources to outfitters based on the bill's renewal and 
successful business provisions.
    Despite these problems with the bill as introduced, the 
Sierra Club appreciates and supports your efforts, Mr. 
Chairman, and those of the outfitters, to find common ground, 
particularly efforts to streamline and standardize the 
permitting process, provide adequate permit award and change 
notification, simplify fees and prohibit fee bidding, award 
permits of sufficient duration to obtain loans and recover 
investments, allow selective control transfer of permits, and 
renew permits based on performance.
    However, when you and the subcommittee address these 
problems faced by commercial outfitters, it will also be 
necessary to address the problems faced by non-profit 
institutional groups, and not exacerbate the problems that 
those groups currently face. It is important that when private 
profit-making interests are balanced with the greater interests 
of the public and the land itself that non-profit users not be 
inadvertently or disproportionately penalized.
    Non-profit institutional groups include such diverse 
organizations as the Boy and Girl Scouts, church and school 
outdoor programs. Currently, activities of such non-profit 
groups are sometimes classified as commercial, and other times 
as non-commercial. When a non-profit group's activity is 
classified as commercial, it is sometimes to obtain the 
required commercial permits due to factors: One, the land 
agency's understandable desire to minimize the number of 
outfitters managed, and two, visitor use restrictions in 
popular areas that generally lead to the assignment of all 
commercial visitor use to establish commercial outfitters.
    This problem can be fixed in ways that provide fair access 
to all users of our public lands. One approach is to maintain 
the current land agency classification of commercial and non-
commercial use, as well as the current land agency recognition 
that some commercial use is occasional, and set aside a minimal 
fixed portion of commercial use for such occasionally 
commercial use by non-profit institutional groups. Doing so 
would enable all three user groups, the public, commercial 
outfitters, and institutional groups, to have access to public 
lands.
    It is important to note that the Sierra Club is not looking 
for preference. In most cases, non-profit institutional groups 
do not compete for commercial recreational users. For example, 
essentially all Sierra Club for which fees are charged are open 
only to Sierra Club members, and the Sierra Club hires 
commercial outfitters to run all of our raft and pack trips. 
For the most part, institutional groups conduct far fewer 
trips, and have far fewer participants, and include educational 
and civic activities that are generally not offered by 
commercial outfitters.
    While a group like the Sierra Club operates fewer trips 
than average than the average outfitter in any particular area, 
the Sierra Club operates more trips in more places, and has 
more commercial permits than perhaps any other outfitter 
covered by this bill. The Sierra Club and other groups have the 
competence to guide their own trips, and provide an experience 
that is not otherwise available. They should not be denied 
access to public lands.
    In closing, the Sierra Club has had extensive discussions 
with outfitters, particularly David Brown, of America Outdoors, 
and found that there is much common ground, with ample 
opportunity to find acceptable compromise. The Sierra Club 
would like to work with outfitters and land agencies that 
sponsor this bill to draft legislation or regulations that 
address the very real problems confronting outfitters, and 
their provision of valuable services to the public.
    Thank you for the opportunity to convey the views of the 
Sierra Club, and we look forward to working with you, Mr. 
Chairman, and the subcommittee, as it further considers S. 
1420. Thank you.
    [The prepared statement of Mr. Simon follows:]

   Prepared Statement of Dave Simon, Director of Outdoor Activities, 
                     Sierra Club, San Francisco, CA

    Mr. Chairman and members of the Subcommittee, my name is Dave Simon 
and I am the Sierra Club's Director of Outdoor Activities. Thank you 
for the opportunity to testify on behalf of the Sierra Club's 700,000 
members in support of outfitter reforms but in opposition to S. 1420, 
the Outfitter Policy Act, in its present form.
    The Sierra Club acknowledges the valuable services that outfitters 
provide in enabling a segment of the public to use and enjoy our public 
lands, and that many outfitters have a commitment to protect natural 
resources. The Sierra Club has a long history of collaboration with 
outfitters in protecting our natural heritage for the current and 
future enjoyment of all Americans. The Sierra Club also runs its own 
outdoor activity program with the mission of taking people into the 
outdoors to inspire them to protect the natural world. In running this 
program, the Sierra Club encounters first-hand many of the same issues 
encountered by outfitters when working with land agencies, and we 
believe that legislation can be drafted that effectively addresses the 
very real concerns of the outfitter community.
    As it was introduced, S. 1420 does address some real problems, but 
does not appropriately balance the needs of the land, the public, the 
land agencies, and the outfitters.

   The bill would burden land managers with providing 
        commercial outfitters a ``reasonable opportunity to engage in a 
        successful business.'' The Sierra Club recognizes that there 
        are land agency practices that affect an outfitter's ability to 
        operate a viable business that should be made more effective 
        and efficient. However, land management decisions should not be 
        based on business conditions as this grants outfitters a unique 
        commercial claim to federal lands and greater power over public 
        land use than the public has.
   The bill would elevate commercial outfitter permits to a 
        legal status greater than other types of federal permits by 
        loosening restrictions on permit sale and transfer, and by 
        restricting the ability of land managers to modify permits. 
        However, permit issuance, renewal and transfer are 
        discretionary acts of the land management agency and they 
        should be based solely on the interests of the public and on 
        the land agency's goals.
   In areas where high recreational demand requires 
        restrictions on public access, the bill would compel land 
        managers to provide a disproportionate share of scarce public 
        resources to outfitters based on the bill's renewal and 
        ``successful business'' provisions. This would limit the 
        ability of land managers to take appropriate action to protect 
        the public resource and serve the public interest.

    Despite these problems with the bill as introduced, the Sierra Club 
appreciates and supports your efforts, Mr. Chairman, and those of the 
outfitters to find common ground--particularly efforts to:

   streamline and standardize the permitting process
   provide adequate permit award and change notification
   simplify fees and prohibit fee bidding
   award permits of sufficient duration to obtain loans and 
        recover investments
   allow selective, controlled transfer of permits, and
   renew permits based on performance

    However, when you and the Subcommittee address these problems faced 
by commercial outfitters, it will also be necessary to address problems 
faced by non-profit institutional groups, and not exacerbate the 
problems that these groups face. It is important that when private, 
profit-making interests are balanced with the greater interests of the 
public and the land itself, that non-profit users not be inadvertently 
or disproportionately penalized.
    Non-profit institutional groups include such diverse organizations 
as the Boy and Girl Scouts, and church and school outdoor programs. 
Currently, activities of such non-profit groups are sometimes 
classified as commercial and other times as non-commercial. When a non-
profit group's activity is classified as commercial, it is sometimes 
impossible to obtain the required commercial permits due to two 
factors: 1) the land agency's understandable desire to minimize the 
number of outfitters managed, and 2) visitor use restrictions in 
popular areas that generally lead to the assignment of all commercial 
visitor use to established commercial outfitters.
    This problem can be fixed in ways that provide fair access to all 
users of our public lands. One approach is to maintain the current land 
agency classification of commercial and non-commercial use as well as 
the current land agency recognition that some commercial use is 
``occasional''--and set aside a minimal fixed portion of commercial use 
for such ``occasional'' commercial use by non-profit institutional 
groups. Doing so would enable all three user groups--the public, 
commercial outfitters, and institutional groups to have access to 
public lands, and that established commercial users would not have a 
monopoly on commercial use.
    It is important to note that the Sierra Club is not looking for 
preference. In most cases, non-profit institutional groups and 
commercial outfitters do not compete for commercial recreation users. 
For example, essentially all Sierra Club outings on which fees are 
charged are open only to Sierra Club members. And, the Sierra Club 
hires commercial outfitters to run all of our raft and pack trips.
    For the most part, institutional groups conduct far fewer trips, 
have far fewer participants and include educational and civic 
activities that are generally not offered by commercial outfitters. And 
while a group like the Sierra Club operates fewer trips than an average 
outfitter in any particular location, the Sierra Club operates more 
trips in more places and has more commercial permits than perhaps any 
other outfitter covered by this bill. Institutional groups such as the 
Sierra Club still compete for wilderness permits and still conduct 
their trips in accordance with land management plans and regulations. 
The Sierra Club accepts all of the costs and responsibilities that come 
with being an outfitter. The Sierra Club and other groups have the 
competence to guide their own trips and provide an experience not 
otherwise available--they should not be denied access to public lands.
    It is also worth noting that despite the perception of some, the 
Sierra Club does not generate a surplus from its outdoor activities 
that it uses to subsidize other programs. Many outings are free and 
others are priced with the goal of recovering costs to the extent 
possible--so this vital educational program is not a drain on other 
Club activities or resources.

                               __________

    The Sierra Club has had extensive discussions with outfitters, 
particularly David Brown of America Outdoors, and has found there is 
much common ground and ample opportunity to find acceptable compromise. 
The Sierra Club would like to work with outfitters, land agencies, and 
the sponsors of this bill to draft legislation or regulations that 
address the very real problems confronting outfitters in their 
provision of valuable services to the public.
    Thank you for the opportunity to convey the views of the Sierra 
Club and we look forward to working with you, Mr. Chairman, and the 
Subcommittee as it further considers S. 1420.

    NOTE: The following attachments have been retained in subcommittee 
files:
    I--Detailed Analysis of the Outfitter Policy Act of 2003; II--Use 
and User Category Clarification and Usage Allocation; and III--Sierra 
Club Outdoor Activities Program

    Senator Craig. Dave, thank you for that constructive 
testimony.
    We are looking forward to working with all parties involved 
here to see if we cannot get what is stable public policy in 
this area.
    Before I offer questions, I only offer one additional 
observation. I grew up in small farming, ranching and logging 
communities, Cambridge, Idaho, and Midvale, Idaho. One 
community is about 150 folks. The other community is about 
2,530, and they really have not grown all that much since the 
fifties and the sixties. They are on the edge of the Hell's 
Canyon National Recreation area, they are on the edge of the 
Payette National Forest, and across the river from the Wallowa 
country, in Oregon, a beautiful country.
    There were saw mills in both of those little communities. 
Those saw mills are now gone. Something that has replaced them 
are probably at least five or six outfitters, who now have 
storefront operations, hire between 25 to 30 people, and have 
become members of the community. Their businesses are offered 
out of those communities. Their kids go to school there. They 
bring main street traffic. They really have become main street 
economy in my State, and across the West, especially near the 
public lands, and clearly, it is in that recognition of trying 
to create both stability and opportunity that this legislation 
comes forward, because, certainly, the West has changed a good 
deal over the last 30 to 40 years, and will always be changing, 
but one of the things that is apparently growing quite rapidly 
today, with good stability and service provided, is the 
outfitting and guiding services for all the reasons that many 
of you have just expressed.
    Dave, in your testimony, you have suggested we include 
provisions giving the Forest Service and the BLM authority to 
issue a single permit, where appropriate. Are there any other 
situations where the two agencies jointly issue a permit, and 
can you be more specific about how this might work?
    Mr. Tenny. As you know, Mr. Chairman, the agencies try to 
align much of the work they do together, especially through the 
Service First Authority. The intent here, especially with 
respect to this legislation, and the administration of permits 
for outfitters and guides, is to more fully align not only the 
intent of working together, but some of the authorities as 
well. The agencies do have differing authorities that relate to 
such things as law enforcement, or the way they use receipts. 
It might be a very useful thing, and, in fact, we would 
consider it a very constructive thing to take a very close look 
at the two authorities of the respective agencies, and see if 
we can align them in a way that will enable us to operate in a 
more seamless fashion.
    I hope that answers your question, but there are lots of 
ways that we work together outside of this particular realm, 
but we certainly would like to be able to work even more 
consistently in this area, especially in those circumstances 
where the two agencies have contiguous land, and we have 
operations that will move frequently from one to the other, and 
we would like that to happen without unnecessary interruption 
or complexity.
    Senator Craig. Jim, do you wish to make any comment on that 
question?
    Mr. Hughes. Yes. The BLM agrees with the Forest Service on 
this. In some areas, we are doing it at the local level, based 
on MOUs, especially on a number of rivers. I know that on the 
Rogue River, in Oregon, we manage commercial activities for 
both the Forest Service and BLM, under an MOU, and I think the 
South Fork Payette River, in Idaho, we have an arrangement 
there, where we get together, and the user fees stay out there.
    The Forest Service, BLM, and recreationists sit down 
together, and decide where best to use that money. So I think 
there are obviously plenty of opportunities to do this, and we 
have some examples that, as I say, we have done out there with 
MOUs in certain areas, and we just can expand it, and maybe 
formalize it a little bit more.
    Senator Craig. The BLM collects what, $3 million a year in 
revenues, the Forest Service, $4 million a year. If we 
authorize single permits for guides whose activities cross, as 
you have mentioned, jurisdictional lines, BLM and Forest 
Service boundaries, how might we share the fees?
    Mr. Tenny. Well, obviously, the best outcome would be for 
the Department of Agriculture to collect all the fees, and then 
make the determination from there.
    Senator Craig. I thought you might say that, Dave.
    Mr. Tenny. This is not altogether different than the way we 
have approached other areas; for example, the way we are 
approaching fuels treatment, and our authorities, and our 
approaches there, and especially under the Healthy Forest 
Restoration Act, where we have some authority to treat a 
certain number of acres. I think the answer to the question is 
that we will simply have to work that out, and I am fully 
confident that we can do that, because we have demonstrated 
that we have been able to do that elsewhere.
    I think that the fact that the Department of the Interior 
and the Department of Agriculture, especially in the land 
management agency area, have become so much more aligned and 
complementary in the way that they do their business, this is 
one where we are confident that we can determine what is most 
equitable. It is certainly an area where we will probably need 
to dig in a little bit more deeply, and look at the nuances, 
but certainly, at the outset, we feel confident that we can 
make that distribution equitable.
    Senator Craig. And if you cannot, we will.
    Mr. Tenny. Of course.
    Senator Craig. I have a feeling appropriators might do 
something like that, or authorizing committees.
    Jim, you indicated the Department has already begun to 
adopt some of the elements of the bill administratively. What 
prompted making these changes, and what value is there for the 
Department in having, let us say, a legislative national policy 
versus regulation?
    Mr. Hughes. I think two things. As you well know, 
recreation needs have grown on public lands in the past decade 
tremendously. So first of all, we are running this program 
without much legislative guidance, quite frankly, and with very 
little legislative history on this type of activity. So I think 
this bill for the BLM, is about the future, as recreation needs 
grow.
    We have come across problems, issues, I think Dave 
mentioned some of them in his testimony about what is an 
educational group versus a commercial outfitter. In some cases, 
our managers on the ground have had to deal with this without 
much guidance from us, quite frankly.
    We have done public opinion surveys with outfitters over 
the years, to try and get user satisfaction. Those numbers are 
starting to go up. They need to go up more. We are concerned 
about the service we deliver, and we want to help the 
outfitters deliver the best service possible, and I think this 
bill will help us get there.
    Senator Craig. Okay. Thank you. Well, we are going to be 
looking probably at some adjustments, changes, and some 
substitute language, so certainly, we will encourage both 
agencies, as we offer up this language, to be quick in turn-
around, so that we might have the opportunity, if we can get to 
where we hope we can in a bipartisan way, to deal with this 
this year.
    I made the mistake of saying ``Dave,'' and watching three 
heads move. David. I will be clearer this time. Again, let me 
thank America Outdoors for their testimony. I think it is clear 
that members of the Outfitter community have the most to lose 
or gain, depending on how this legislation ultimately reads. As 
you know, this legislation has been debated for many years. We 
have had variances all over the place, some on a forest-by-
forest basis, others on an area-by-area basis. What kind of 
impact has the lack of guidance had on the industry itself?
    Mr. Brown. Well, I have been doing this now for 23 years or 
so, and periodically, we get these changes that come at the 
Washington level that threaten to destabilize the industry, and 
that obviously retards investment.
    The second is in the field, especially with the policy. We 
do see inconsistency in the administration of permits. We have 
had--I want to say that 75 percent of the relationships are 
good, but in our business, we end up dealing with the 25 
percent of the problems, and there is that potential for that 
to increase, unless there is legislation. We do have people who 
operate, who will have a manager come in one day, and say, even 
despite their good record, and their use of the permit, that 
they are trying to cut their use in half, with no 
justification, no documentation.
    So those are the kinds of problems that the bill deals with 
in providing due process, and requiring a public comment, if 
use levels for outfitters versus other segments of the user 
population are changed.
    Senator Craig. How would your members react to a simplified 
single joint permit, the kind that we just visited, where you 
cross administrative jurisdictions?
    Mr. Brown. I think that is a great idea. What we are 
finding now is that NEPA is required for every permit issuance, 
and so if you are running a trip that goes from Forest Service 
to BLM, one agency is very often unable to issue the permit 
until they do an NEPA compliance, and that can take quite a 
long time. I have a guest range in Oregon, as a matter of fact, 
that is having that problem right now.
    Senator Craig. I will come back with a couple of more 
questions, but let me turn to my colleague, Senator Craig 
Thomas, for any questions.
    Senator Thomas. Thank you, Mr. Chairman. I do not know that 
I have any questions. I was much interested in what the panel 
had to say. As you know, we worked with this in 1998, with our 
Parks bill, and as a matter of fact, have a plan in there that 
is very similar, I think, to what is being done here, and I 
think it is a good idea. Outfitting is unique. It is different 
than most of the other types of agreements we have to make. So 
it makes sense to have a policy on it.
    You were talking about where you grew up. I grew up right 
outside of Yellowstone and Shoshone National Forest. I think 
four of our neighbors were all outfitters, and still are. In 
that instance, it is the Park and the Forest Services, where 
they are used jointly.
    So I think it is a good idea to do this. I have been, and 
will again be a sponsor of this bill. I think we need to have 
some standards, and lay them down out there. So I really do not 
have any questions. I just hope we can move forward with it. 
Thank you.
    Senator Craig. Thank you very much, Craig.
    Then let me get back to some questioning here. Let me ask 
this of you, David Brown, and let me ask this of you, Dave 
Simon. You have had an opportunity to look at the legislation 
in its current state. We have an affirmative piece of testimony 
on the part of David Brown. We have some testimony with caution 
in it on the part of Dave Simon. Are there any proposals within 
this legislation that truly give folks heartburn, in the sense 
of, let us start with you, David, as it relates to the industry 
itself, and some adjustments that they would like to see 
specifically made?
    Mr. Brown. I do not think there is anything that really 
gives us heartburn in the bill. There are some elements of it 
that we think, especially on the fee language, that deserve 
some clarification, but we have worked on this thing now for 
almost 7 or 8 years, and pretty much massaged it. So the fee 
language, we are in an evolving process with fees, with the 
agencies. One of the problems we have is that they are very 
often in--some of the agencies run out of different offices, 
and we talked about cost recovery, they want to send us to OMB, 
and we talked about other issues. We run into different 
elements of the agencies. So it is hard to get an idea of what 
the total fee burden is going to be in the long run, and I 
think that we need some language in that area that will limit 
the total fee burden.
    With regard to the successful business venture language, 
that is really part of what the intent is there, to preclude 
fees from being so high that they marginalize the business, and 
the public is just not well served by marginal operation.
    Senator Craig. Dave, your comments.
    Mr. Simon. Senator, I think there are some general issues 
with the construct of the bill that makes strong use of the 
double negative, which the way it is worded, it says, ``Shall 
not be inconsistent with,'' as opposed to just saying, ``Shall 
be consistent with land management policies,'' and things like 
that. So we think there is language that can be cleaned up, and 
we think that is more than just a token concern. We think that 
is a significant concern.
    As far as the other issues, we have some concerns about the 
vagueness of the probationary process, that appears to us to be 
weaker than the current regulations. We have some concerns 
about fees.
    Another is the allocation of use. It has to do with the 
successful business venture proposition, which, in the context 
of fees we understand do not oppose that, but it is also in the 
purpose of the bill. In the purpose of the bill, having the 
mandate to provide for a successful business venture for an 
outfitter then starts getting into land use decisions, and how 
use is allocated, and where there needs to discontinue use in a 
certain area, because that is what the land dictates, that we 
are concerned that the land managers will not have the 
flexibility because of that provision to reduce the allocation 
for particular outfitters.
    In addition, we also think that the institutional groups 
will get marginalized, and we will find ourselves without the 
ability to access public lands. We currently find that in 
certain situations. There is any number of land agency 
districts that that occurs now, and we think that that is only 
going to increase in the future with this legislation, as it is 
currently written; however, we think there are some very 
straightforward, acceptable ways to amend the legislation that 
will be very palatable to the outfitter community, that would 
address our concerns.
    Senator Craig. Well, I have to compliment you. This is the 
most constructive the Sierra Club has been to date on this 
particular issue, and I say that in all sincerity, and I 
appreciate it.
    In your testimony, you have described the objective in the 
bill of providing outfitters a reasonable opportunity to engage 
in a successful business would be a burden on land managers. 
Can you see a better way to address the legitimate need for a 
stable business environment without it becoming a burden on an 
agency?
    Mr. Simon. I think by mandating certain consistencies and 
process will go a long way for the outfitters community, so 
they will know what it will take to get permits, know the time 
frames for renewals, understand very clearly what the rules are 
for performance evaluation.
    Fees are not a big issue for us. In discussions with David 
Brown, I know fees are a very big issue for the commercial 
outfitters. Clearly, the successful business venture can be 
applied to fees, in terms of capping fees in some manner or 
form, so that outfitters are not burdened with extensive fees. 
However, that is not really our issue. We have to pay fees like 
others, and we pay them.
    Senator Craig. Mr. Tenny, maybe you wish to add any 
additional comments to Mr. Simon's comments.
    Mr. Tenny. Well, maybe I would just add that certainly I 
hear a lot of congruity on the part of these two gentlemen in 
some respects. We are not interested in creating a situation 
that is going to be unfair, by way of fees, for example, or by 
way of consistency in the way we administer permits. So I think 
that--it sounds to me like there is opportunity for lots of 
agreement here. It sounds like there are discussions ahead, in 
terms of how that agreement might be a fashion, but certainly, 
we would be quite willing to help in any way we can to reach 
that point.
    Senator Craig. Mr. Davidson, tourism is one of the fastest 
growing industries in most of our Western States. What can you 
tell us about the current trend of tourism, and its impact on 
local communities, as you see it?
    Mr. Davidson. Mr. Chairman, it is a very astute observation 
that tourism is, indeed, one of the fastest growing industries 
in the country, not only in the West. If nothing else was 
brought to light during 2001, with the recession, that was 
exacerbated by the terrorist attacks of 9/11, it was how much 
the Nation's economy had come to depend on the tourism 
industry.
    In fact, the visitor industry employment in the country 
represents about 6 percent of the Nation's employment, but 24 
percent of the job losses in the Nation, as a result of that 
recession and the terrorist attacks, resulted in the tourism 
industry. So the impacts have been felt very broadly.
    I can tell you that tourism continues to grow to the point 
that it is now either the largest, or certainly one of the top 
three largest industries in each of the member States, or the 
Western States Tourism Policy Council. Our visitors are telling 
us that they see our States offering great recreation 
activities, have great State and national parks, have truly 
beautiful scenery, and that is the impetus for travel to the 
West.
    They may engage in a variety of other activities there that 
involve tribal tourism, and heritage tourism, and the like, but 
it is that incredible natural beauty that drives them to our 
Western States, and at that point, the impact on the world 
communities is paramount, because those are the communities 
that serve as gateways, those are the communities that are 
serving visitors as they enter the public lands, and provide 
them the services that they need. So as tourism continues to 
grow, the role of tourism impacting those rural economies will 
only continue to grow.
    Senator Craig. Todd, I oftentimes call outfitting and 
guiding value-added tourism, because it causes more money to be 
spent in a given location, and it brings economic stabilities 
to the locations where it is spent. You spoke a lot about 
stability in your testimony. Can you give us some examples? You 
have already spoke, of course, about the environment, post-9/
11, but can you give us some examples about how the instability 
of the current system might affect, or has affected tourism?
    Mr. Davidson. Some of the comments, Mr. Chairman, have been 
addressed by fellow members of the panel, as they talked about 
some steps that have already been taken to help address 
stability or instability issues. For example, the Rogue River 
was one of the first places in the country to do a dual permit. 
That is, you float from Forest Service, under BLM, or actually, 
the river goes the other way. I think it flowed from BLM onto 
Forest Service land. There is a common permit now to help you 
access that, but the--those are maybe few and far between. They 
are great examples of best practices, but the need for a 
national policy still exists.
    As you mentioned, the value-added component that outfitter 
guides bring to our economy is incredibly important to us. We 
do what we can to encourage visitors to come and stay longer, 
and spend more dollars, while they are in our respective 
States. Outfitter guides afford us that kind of opportunity, 
because they allow folks access to some trips that they would 
not otherwise be able to take on on their own.
    Instability within the outfitter guide community only 
leaves them with a more tenuous business decision, and us with 
that shakier infrastructure at the front line, for us to be 
able to better serve our visitors.
    Senator Craig. Probably to you David, Jim, and Dave, that's 
Brown, Hughes, and Tenny, Mr. Simon has mentioned the 
recognizing of occasional commercial use. React to that for me, 
if you would, in the context of what we are attempting to do 
here. I do not dispute his testimony, or the value of what he 
has proposed. What are your reactions to his comments in 
relation to the term, ``Occasional commercial use''?
    Mr. Brown. Well, the bill provides for temporary permits. I 
think what Dave is talking about are groups that would like to 
get temporary permits that somehow are not able to access them. 
Let me say this. Of our top six members, the biggest ones, two 
of them are non-profits, so non-profits are already some of the 
most prominent users on public lands under the existing 
permitting system. In fact, the regional director of 
concessions in the Forest Service, Northwest, tells me they are 
the biggest single type of use in the Northwest.
    But I understand what Dave is saying, and where he is 
coming from. Outfitters are a little bit like the airlines. It 
is impossible to book at a hundred percent. There are 
cancellations, or disruptions, so the resources, even if--it's 
rare to have a hundred percent of the outfitted use utilized. 
So I think there is capacity there for temporary permits to be 
issued to groups. I would say that that might be done in a way 
that contributes to diversity of the users, but not specify 
specifically for non-profits, because I think you would have an 
exclusive use category for non-profits in one area, and then 
they are also participating in the existing permit authority. 
So I think to do that, to encourage a diversity of use is a 
good idea, but to do it in such a way that a for-profit or non-
profit could do it.
    Quickly, one other thing. I think under that system, one 
concern we have is that when non-profits or for-profits are 
providing a same or similar service at the resource, that they 
do so under the same fees and conditions.
    Senator Craig. Jim.
    Mr. Hughes. Mr. Chairman, this is an issue that Mr. Simon 
brought up regarding some of the definitions we wanted to talk 
to the committee about. We do not want a group of Boy Scouts 
and Girl Scouts to be suddenly categorized as outfitters. There 
are other conditions that we deal with in the field, on which 
our managers have to make a decision. For example, a trip that 
someone is organizing under the auspices of an educational 
unit, and whose purpose is, in theory, educational, really more 
recreational? So those are issues, I think, that our managers 
are trying to deal with on the ground, on a day-to-day basis, 
and some guidance, I think, would be very helpful to us out 
there in the field.
    Senator Craig. Dave, any comment?
    Mr. Tenny. Yes. One thing that I think is important to 
realize, with respect to the Forest Service permits, the 
occasional use concept I think can apply both to those 
organizations, or those outfitters and guides that are 
commercial in nature, and those that are not. If you look at 
the vast majority of the permitees that use Forest Service 
lands, they are grossing annually less than $50,000. That is 
not a large sum of money, by any standard.
    In fact, most of them are grossing less than $10,000, I 
think, based on our most recent information. So their use is 
generally very much falling within this notion of occasional 
use, and I think we want to make sure that everybody is in the 
tent here, both those that are able to accommodate larger 
parties, those that are able to accommodate small parties, 
those who are out on the land more often during the year, and 
those that are on the land less often.
    I do not think anyone's intent is to either exclude or 
treat unfairly any of the groups that want to use our Federal 
lands. In fact, I am very encouraged by the discussion here of 
access, because I think access is at the core of what we are 
talking about. We want to improve and increase access to these 
lands. I think that that is a very worthwhile policy objective.
    I concur with the comments that Jim and David have made, 
and we certainly want to do everything we can to make the 
system fair and simple enough, so that we are not creating a 
complex web that will be difficult for any party to navigate, 
whether they are a profit or a non-profit, or whether they are 
large or small.
    Senator Craig. Mr. Simon, are you being misunderstood here, 
or do you believe that is a reasonable evaluation of your 
concern?
    Mr. Simon. I think it is a reasonable evaluation. If I 
could say it a little differently. We currently have about 50 
permits across the country, and most of those are in areas 
where we run one or two trips. There were half-a-dozen areas, 
actually, if you include National Parks, closer to ten areas, 
where we just were not able to get the permits, because all of 
the commercial use was currently allocated to their designated 
outfitters.
    That applies notably to the Sierra Club, because we have a 
name, people understand our program, land managers understand 
our program, but it really is true that under the regulations, 
as they are written, if the Boy Scouts charge a hundred bucks 
for a trip, where the out-of-pocket costs are seventy-five, 
that is commercial use, and presumably, they would not be able 
to go to the same ten areas that we could not go to either, if 
they got the same answer from the land manager.
    The concern is very real. I understand David Brown saying 
perhaps we set aside this fixed minimal portion, and open that 
up to either commercial or non-commercial use. I do not have a 
fixed opinion on that. That seems like a way in which others 
could compete with the established outfitters. I am not sure 
the outfitters would like that, but the key is, if you have 
commercial use, which is how the land agencies view the use, 
they do not care whether it is a non-profit footstep, a for-
profit footstep, it does not matter, it is whether it is 
commercial use or non-commercial use, and the idea of setting 
aside, keeping in reserve some portion of that commercial use 
for occasional users, strikes me as good public policy, in 
terms of opening up the access to our public lands, and keeping 
it open.
    Senator Craig. Okay. Is there any further comment on this 
particular issue? Is there any additional comment that any one 
of you would like to make before we close this hearing? An 
opportunity for the last word, David.
    Mr. Brown. I do think this issue here is one of the 
critical issues, but I do think there is a way to solve it. 
Dave and I have worked together on this Park Service working 
group for commercial use authorizations, and we were able to, I 
think, reach a consensus on that issue. So I think we can 
probably solve this in a way that is in the best interest of 
the public, and helps the bill advance.
    Senator Craig. If it is solvable, and I agree with you, it 
is, then your challenge is to do it in 10 days or less. No. 
Your challenge is to do it within reasonable time. Let me 
suggest to all of you that I think we do want to move this 
legislation this year, and we would like to move it sooner 
rather than later. I will continue to work with my colleague, 
Ron Wyden. We will work in a bipartisan way, to see if we can 
bring resolution to this, with all of you involved in it, so 
that when we get to a final draft, we have arrived at as much 
consensus as we can possibly get, with all of you fully in 
participation. We would appreciate that a great deal.
    I guess my challenge to all of you is to please stay 
engaged with us and our staffs as we work to finalize this, so 
we can get a final draft, and move this through our committee.
    I appreciate it a great deal. Thank you all for being here 
today. The subcommittee will stand adjourned.
    [Whereupon, at 3:30 p.m., the hearing was adjourned.]


                                APPENDIX

              Additional Material Submitted for the Record

                              ----------                              

                                       American Whitewater,
                                  Silver Spring, MD, March 3, 2004.
Hon. Larry E. Craig,
Chairman, Subcommittee on Forests and Public Land Management, U.S. 
        Senate, Washington, DC.
    Dear Senator Craig: Thank you for providing this opportunity to 
submit testimony to the Subcommittee on Forests and Public Land 
Management in regard to the Outfitter Policy Act of 2003 (S. 1420).
    American Whitewater, a national 501.c.3 non-profit organization, 
appreciates the opportunity to describe our support for this 
legislation. As described below, our support is conditioned upon the 
ultimate inclusion of Sections 17 and 7.C.
    Section 17 serves to protect the legacy and traditions of non-
outfitted citizen use of America's public lands. Though outfitters play 
an important role in facilitating access to the outdoors, non-
outfitted, independent citizen access is essential for preserving our 
national heritage, enhancing public health, supporting rural and 
gateway economies, and bolstering national sales of recreational 
products.
    Section 7.C. ensures that agencies retain the authority to change 
outfitted allocation in response to management plan modifications and 
related changes to applicable laws. Inclusion of this section secures 
future opportunities for non-outfitted public access, and provides 
clarification to land managers about the scope of the bill.
    We thank you for including these clear protections for the public.
    It is apparent to us that the bill is not intended to impede the 
public's ability to engage in private recreational use of public lands. 
However, there is no guarantee that, if enacted, the bill will not have 
unintended consequences regarding non-outfitted recreational access to 
public lands. If moved forward for a vote, we respectfully request that 
the Subcommittee, in its written report, detail the sponsor's 
intentions to protect non-outfitted public access while also providing 
for improved management of, and increased accountability for, outfitted 
activities by which the public gains access to and occupancy and use of 
Federal land.
            Sincerely,
                                           Jason Robertson,
                                          National Policy Director.
                                 ______
                                 
          Statement of Jennifer Lamb, Public Policy Director, 
                   National Outdoor Leadership School

    Chairman Craig, Senator Wyden and members of the subcommittee, 
thank you for the opportunity to submit this statement to the 
Subcommittee on Public Lands and Forests regarding the Outfitter Policy 
Act, S. 1420. We ask that this statement be included in the official 
record of the hearing held on March 3, 2004.
    The National Outdoor Leadership School (NOLS) is a non-profit 
organization that teaches outdoor skills, leadership and ethics to more 
than 8,800 students each year. Founded in 1965 and headquartered in 
Lander, Wyoming, NOLS employs more than 800 instructors and staff at 
eight locations and two professional institutes worldwide. Our annual 
revenues exceed $19 million. NOLS' mission is to be the leading source 
and teacher of wilderness skills and leadership that serve people and 
the environment.
    From our five U.S. branch schools, NOLS is a permitted commercial 
operator in 21 National Parks, 23 National Forests, three National 
Wildlife Refuges and 20 Bureau of Land Management areas in nine western 
states. The core of our education programs includes extended 
backcountry expeditions of 10 to 93 days in length--our instructors and 
students spend significant amounts of time on public land. Our 
management staff has considerable experience working with permitting 
systems of each of the four Federal land management agencies. In 2003, 
NOLS spent roughly $200,000 on commercial permit fees to operate on 
federal land in the U.S.
    NOLS supports the primary purpose of S. 1420--to ``establish terms 
and conditions for use of certain Federal land by outfitters, and to 
facilitate public opportunities for the recreational use and enjoyment 
of such land.'' We agree with many of the specific aspects of S. 1420 
and have concerns about others. A brief summary of our position 
follows.

1. Fees
    We are pleased to see language in the bill that requires 
consideration of fee equity amongst operators (Section 5(a)(5)), 
cumulative fee impact and overall fee burden (Section 5(b)(1)(B)), 
consolidation of fees (Section 5(b)(1)(C)), and accounting for use that 
crosses agency boundaries (Section 5(a)(3)). These are aspects of 
agency fee programs for which we have long advocated, and we appreciate 
the effort committee members have made to include them in the bill.
    We have a couple of concerns regarding fee language. First, we ask 
that the bill be modified to clarify the language in Section 5(a)(4)(A) 
on adjusted gross receipts (AGR). Currently the bill specifies that, 
for the purposes of calculating permit fees, AGR will include revenue 
from ``commercial outfitted activities conducted on Federal land''. We 
want to be sure that the intention is that AGR specific to a permit 
includes revenues earned by the activities conducted under that permit. 
For example, a permitted operator will pay for a permit on the Shoshone 
National Forest based on the revenue earned from programs conducted 
under the Shoshone National Forest permit, and not based on revenue 
earned from other permits on other Federal land.
    Our second concern regarding fees relates to Section 4(d)(2), which 
states that a competitive process will be employed to select an 
authorized outfitter if there is competitive interest in the activity 
to be conducted. The Bill does not specify whether the competitive 
process will be based on performance of operators, past history, 
financial qualifications, a fee bidding process, or other factors. 
While we are pleased to see that the criteria for granting an outfitter 
permit includes skill, experience, knowledge of the area, safety, 
education opportunities offered, etc., we are against the establishment 
of a permit system that favors those outfitters with the greatest 
ability to pay over organizations that perhaps specialize in a 
geographical area, a specific activity, or in programs serving lower 
income students or clients. We believe that the competitive 
authorization process referred to in the bill must be performance based 
and not evolve into fee bidding. Ability to pay should not dictate the 
permit authorization process.

2. Performance-Based Permit Renewal
    We are pleased to see that Section 8 of S. 1420 defines an 
evaluation system based on the performance of operators, and that the 
bill authorizes permit revocation or suspension if operators fail to 
meet predetermined standards. As we have commented on previous versions 
of the Outfitter Policy Act, NOLS believes that a permit system 
designed around performance-based renewal will best serve the public, 
the resource, the agencies and commercial operators. Such a system will 
encourage outfitters to continue to learn, to consider the impact of 
their operation, to be accountable and to establish good working 
relationships with land managers. It rewards commercial operators for 
the right reasons.
    That said, we have two concerns about the performance evaluation 
stipulations outlined in the bill. First, we would like to see language 
added to Section 8(a) that states that the performance evaluation 
system, in addition to ensuring the availability of safe and dependable 
outfitter services, will ensure that outfitted activities will be 
conducted in accordance with identified resource protection standards. 
Commercial operators must be engaged at every opportunity in the 
agencies' efforts to manage the resource for long-term sustainability.
    Our second concern is more general and is related to the practical 
realities of implementing a performance-based evaluation system. 
Implementation of such a system will require careful consideration of 
the criteria that will be used to assess performance. Because not all 
outfitters are alike and many offer different activities and programs, 
the criteria must be flexible, yet equitable.
    For the performance evaluation system to work effectively as 
defined in the bill, the agencies will have to dedicate enough 
resources to complete the annual evaluation of each permittee. 
Understanding the shortage of resources and the backlog of 
administrative--particularly permit-related--work facing some agencies, 
we encourage the committee to consider the possible outcomes of 
implementing such a system. The practical realities that the agencies 
face must be factored into the design of the system to ensure its 
success. NOLS offers its assistance and experience in the field in 
designing such a system.

3. Permit Term
    From an outfitter's standpoint, NOLS supports the bill's allowance 
for a permit term of up to ten years. A ten-year term encourages 
operators--particularly smaller organizations--who wish to invest in 
building high-quality and sustainable programs.
    We believe, however, that the needs of operators and those of the 
agency, and thus the resource, need to be balanced. Land managers need 
the flexibility to manage the resource while outfitters need a stable 
enough environment to run a sustainable business. In light of this, we 
are pleased to see the stipulation in the bill that allows permit terms 
to be shortened if conditions on the land warrant a change to a 
management plan. This encourages both the agencies and the commercial 
operators to consider the resource and its use as an integrated system. 
It also encourages permitees to become more aware of and participate in 
the land management planning process, something NOLS believes is 
vitally important.
    We see one potential sticking point in the language regarding 
permit term. Section 4(e)(1)(D)(ii) states that a term of 10 years or 
fewer can be set based on (1) foreseeable amendments to resource 
management plans that would create conditions that necessitate changes 
in the permit term; and (2) the Secretary and the authorized outfitter 
agree to the reduced permit term. There is potential for conflict in 
this case because it is possible that conditions on the land may change 
and the agency will see the need to issue permits with shorter terms 
but the operators will not agree. Rather than set the stage for 
protracted disagreement and stalemate, we believe that the bill should 
provide the agency with the ultimate authority to decide on a shorter 
term without the consent of the operator. The operator must be fully 
engaged in the discussion, and have the opportunity to affect the 
outcome, but the agency's flexibility to make good resource-based 
decisions must be preserved. Operators are authorized in Section 12 to 
appeal a decision if they believe it is unfair or inappropriate.
    Also important, the bill preserves the agencies' ability to revoke 
a permit when an operator jeopardizes public health and safety or 
protection of the resource.

4. Academic Definitions
    Section 17(b)(4) stipulates that outdoor activities and services 
for or related to academic credit and provided by ``a bona fide and 
accredited academic institution'' are not governed by this Act. 
Clarification is necessary, either in the bill itself or in ensuing 
regulation, to define what is considered ``bona fide and accredited'' 
in this case. While our classrooms are non-traditional, 75 percent of 
our 17- to 22-year old students earn college credit on their NOLS 
course. Yet, by the definition of ``commercial outfitted activity'' in 
Section 3 of the bill, NOLS is a commercial entity, governed by this 
Act. Which definition will apply?
    This section of the bill essentially acknowledges that academic 
institutions' use of public land differs from traditional outfitted use 
and is therefore not managed by this legislation. While the mission, 
goals and objectives of these programs do generally differ, the 
activities they engage in are often similar in many ways. In light of 
this, we believe that academic use should be subject to the same or 
similar performance evaluation and expectations as traditional 
outfitted groups.
    Confusion in the definition of academic or educational organization 
versus commercial entity has led some organizations to slip through the 
cracks in the management system, thereby avoiding permitting and 
evaluation altogether. This bill and ensuing guidance to the field 
should clearly define all categories of group use and the associated 
requirements and expectations.

5. Fair Allocation Amongst All User Groups
    We have two points to raise under this heading. First, Section 
17(b) of the bill states that the Act will not diminish the agencies' 
ability to establish levels of use and allocation among the outfitted 
and non-outfitted public. We strongly encourage the committee to 
consider the importance of providing guidance to the field that 
requires agencies to consider fully all types of use--permitted and 
nonpermitted, commercial and non-commercial--when establishing an 
allocation system. As a permitted operator, we have witnessed agency 
field offices that, when faced with setting limits on use or visitation 
to an area, will turn to commercial permits as a mechanism for 
controlling numbers, rather than evaluating and regulating all types of 
use. Permits provide a convenient mechanism for controlling use. While 
this is an important purpose of a permit, it is not the only tool for 
managing visitation. Use by institutional groups (e.g., nonprofit or 
academic institutions) and the non-permitted public must also be 
considered and controlled appropriately.
    Our second point relates to situations in which commercial use must 
be limited to protect the resource. We strongly support permit renewal 
based on performance and lengthier permit terms--these conditions are 
good for both operators and land managers. We also believe that they 
are good for the resource in the long run. Long-term operators have a 
vested interest in protecting the resource. However, we have one 
concern regarding allocation that potentially results from this 
approach. Commercial or institutional users who are interested in 
offering services on an infrequent basis in an area in which they are 
not permitted may have trouble acquiring a permit. An operator who 
doesn't get in before the limits are set might be shut out for ten 
years or more. We are concerned that new or occasional operators will 
be excluded unless a small portion of user days is reserved for their 
use.

6. Probationary Transfer
    NOLS understands from direct experience the importance of permits 
on federal land to the stability and solidity of a commercial 
operator's business. We have no ``issue with the provisions in the bill 
that allow for the transfer of a permit to a new operator. We do, 
however, believe that a new operator that receives access through a 
permit transfer should be subject to the same two-year probationary 
period that any new applicant must complete. At the end of a 
probationary period, a full performance evaluation should determine 
whether a standard-term permit is issued.
    NOLS appreciates the effort and analysis that the committee has 
dedicated to the Outfitter Policy Act. We also appreciate the 
opportunity to provide our opinion on the proposed legislation.
                                 ______
                                 
 Statement of Vera Smith, Conservation Director, Colorado Mountain Club
    Please accept this as an official submittal to the hearing held by 
the Subcommittee on Public Lands and Forests on March 3, 2004 on S. 
1420, the Outfitter Policy Act.
    The Colorado Mountain Club (CMC) is one of Colorado's largest 
outdoor organizations with over 10,000 members and 16 chapters. Founded 
in 1912, the CMC strives to ensure high quality recreational 
experiences for its members and the public, protect the natural 
resources of the Southern Rocky Mountains, and educate the public on 
responsible and appropriate recreation.
    The CMC conducts non-commercial activities as well as operates as a 
commercial institutional and public outfitter on public lands with an 
average annual commercial allocation on U.S. Forest Service 
administered lands of approximately 3,000 recreational visitor days. 
The commercial outfitting opportunities that the CMC offers to members 
and the public are entirely educational, focused on teaching 
responsible recreation, wild land ethics, volunteer leadership, 
conservation, natural history, and landscape art to adults and youth. 
In providing opportunities, we regard the public lands as a classroom 
more than a venue for recreation. Although the demand for our 
educational services is increasing, the availability for institutional 
outfitter special use permits is diminishing.
    Like many other non-profit educational outfitters, the vast 
majority of the CMC's outfitted opportunities are organized and led by 
volunteers, resulting in use that is variable (with variability due to 
changing educational topics and volunteer availability). The result is 
that it can be difficult to obtain the required commercial permits 
because the developed recreational capacity has already been assigned 
to established (often larger) commercial outfitters. For example, the 
Forest Service prohibits the issuance of priority use assignments to 
institutional outfitters, forcing CMC and other non-profit 
institutional educational outfitters to seek temporary use 
authorizations each year (Outfitter Guide Administration Handbook, 
Northern Region, USDA, Forest Service, February 1997, page III-10; FSH 
2709.11,41.53h), yet does not require that a ``pool'' of outfitted days 
for institutional educational outfitters be set aside.
Educational Outfitters Need Fixed Minimum Allocation
    As the subcommittee considers how best to address improving the 
management of commercial outfitters on public lands, the subcommittee 
must also address the issues facing non-profit educational outfitters 
and not exacerbate the problems that these groups face. Non-profit 
educational outfitters such as the CMC provide critical visitor 
education--services that further the mission of the public land 
agencies--services that are integral to conserving natural and cultural 
resources and ensuring responsible behavior in the backcountry yet are 
not adequately provided by the agencies under current budgets. Yet, as 
stated above, non-profit educational outfitters are finding it 
increasingly difficult to acquire special use permits, in part because 
they are small, volunteer-based, and more variable in their operations, 
and because institutional outfitters are prohibited from being granted 
priority use authorizations. Because providing land-based education 
that furthers the goals of the agencies is a primary purpose of non-
profit educational outfitters, these organizations should be assured a 
minimum annual allocation in order that they are not pushed off public 
lands in favor of larger commercial outfitting operations.\1\
---------------------------------------------------------------------------
    \1\ Legislation would have to provide a careful definition for 
educational outfitter. For example, an educational outfitter should be 
a non-profit organization that has a mission statement with a primary 
purpose (not necessarily the only primary purpose) of furthering 
understanding, appreciation, and stewardship of public lands.
---------------------------------------------------------------------------
    Currently, the land management agencies in regard to issuing use 
allocations do not formally distinguish between commercial non-profit 
educational outfitters such as the CMC and other commercial outfitters 
such as snowmobile or jeep tour companies, and, consequently, do not 
assure that non-profit educational outfitters are guaranteed a minimum 
allocation. The bill, as introduced, would also fail to draw this 
important distinction and to ensure minimum allocations to non-profit 
educational outfitters; the bill would fail to recognize the role that 
non-profit educational outfitters play in furthering the goals of the 
public land management agencies and bolstering much-needed visitor 
education services that the agencies are unable to provide adequately 
under current budgets. Given that recreational capacity on public lands 
is limited, dispersed recreation is increasing, and land management 
agencies are fiscally challenged to provide much-needed educational 
services to the visiting public, it is only rational and appropriate 
that non-profit educational outfitters are granted an assured minimum 
allocation of the recreational capacity for developed (outfitted) 
recreation.
Outfitting Purpose Is To Serve the Public
    The purpose of permitting outfitters is to provide the public 
alternative opportunities to visit public lands so long as such 
opportunities do not degrade the long-term condition of the land; it is 
not to ensure that businesses are successful absent a public need. 
Hence, the proposed legislation's emphasis on ensuring ``successful 
business ventures'' concerns us significantly. For example:

   The bill's renewal, transfer, and ``successful business'' 
        provisions will force land managers to provide a 
        disproportionate share of the available recreational capacity 
        to outfitters in popular recreational areas, limiting the 
        ability of land managers to take appropriate action to protect 
        public resources and serve the public interest.
   The bill would elevate commercial outfitter permits to a 
        legal status greater than other types of federal permits by 
        loosening restrictions on permit sale and transfer, and by 
        restricting the ability of land managers to modify permits.

    Thank you for the opportunity to comment.

