A Forest Service concessioner who is currently operating a shuttle service under a Term Permit recently filed a lawsuit challenging the agency’s decision not to re-issue it a new permit but to instead put out a prospectus seeking a new operator. The permittee alleged that the Forest Service had reneged on a commitment that the agency would first provide the permittee with an opportunity to make any changes requested by the agency to address public demands related to the service under a new long term permit. The agency then changed course and decided not to reissue a new permit but instead issue a prospectus. The agency claimed, contrary to its prior statements, that the permittee was expected to meet the new public demands by making significant improvements during the short length permits it had been operating under and thus had demonstrated it was unable to meet these demands. The agency claimed this determination justified the agency’s decision not to honor its commitment. The permittee, however, asserted that the Forest Service had agreed that the permittee could not make significant changes during its prior operations under the short length permits because it could not recover of the cost of the changes. The permittee also alleged that the agency’s finding that the permittee could not meet the public demands effectively prevented it from obtaining the new permit.
The permittee has been providing the shuttle services on the Coronado National Forest for the past 32 years and owns numerous structures on the Forest which it uses to provide these services. The complaint states that the local Forest staff had previously attempted to terminate the permit based on a contrived claim that the permit holder was not meeting the terms of its permit. A team of Forest Service investigators, however, was brought in by the agency’s Washington Office for an objective evaluation and they concluded the permittee had no negative evaluations to justify it being terminated. The investigation team also concluded that “[i]t is clear the Sabino Canyon Shuttle is a locally loved and successful service” and the permittee “has continued to run [its] business successfully, and uninterrupted, and it is a hugely popular attraction in Tucson.” The allegations state that the Forest Service decision to renege on its commitment was a response to pressure brought by the local Congresswoman and a local special interest group which had stated its intention was to have the permittee replaced.
The agency stated that the prospectus was issued to find an operator who could show it was capable of meeting the public’s demands for changes to the existing services. The lawsuit alleges that, by deciding that the permit holder is incapable of meeting the public’s demands, the agency has ensured the permittee would not have any actual opportunity to be awarded the new permit and violated the permittee’s right to be be fairly evaluated for award of the permit. The lawsuit also alleges the Forest Service violated the National Environmental Policy Act by failing to disclose likely ground disturbing actions which will occur if the permit holder is forced to cease its operations.