[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
______
93-457 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
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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
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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
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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
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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\
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\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.
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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.