We have extensive experience working with federal concessioners who have contracts and special use permits with the National Park Service and US Forest Service, as well as the Bureau of Land Management, Bureau of Reclamation, Army Corps of Engineers and various State agencies. And we are committed to ensuring that folks who want to recreate on public lands are provided a wide variety of high quality opportunities. As federal concessioners and outfitters operating on federal land, we don’t think you’ll find more experienced legal consultation and assistance than The Garden Law Firm.
In addition to working with individual companies, we provide legal consultation to the National Forest Recreation Association, National Park Hospitality Association, the Back Country Horsemen of America and the National Forest Homeowners association.
National Park Service/US Forest Service/Army Corps of Engineers/Bureau of Reclamation/Bureau of Land Management Concessioners
In the old days, all concessioners needed to be was good at their trade. Now, like it or not, they need to be knowledgeable of the various legal processes that can affect their livelihoods. We provide that knowledge.
As concessioners, it’s absolutely critical that you know your rights. For example, while the US Forest Service takes the position that all of its permits are merely unenforceable licences, did you know courts and other federal agencies have ruled many of these permits are binding contracts which the agency must honor? This legal assessment is key to decisions you may make as to your concession contract or permit. Using our extensive experience with federal concession contracts and special use permits, we provide this legal analysis for our clients so they can make smart, strategic decisions.
Our clients often use us the way large corporations use their in-house General Counsels. Our experienced legal consultation on those aspects of their operations with legal implications can result in a more informed and better decision. One of the key foundations of our knowledge is our background in government contract law. Government agencies have hundreds of lawyers who are tasked with providing legal assistance to the agencies to protect the government’s interest. Because of that, it’s crucial that you also have legal assistance to ensure that you are are treated fairly and able to protect your rights under the law.
Our clients range nationwide from the largest to the smallest concession entities. And our services can be scaled to provide effective assistance under any budget. We work with resorts, lodges, campgrounds, marinas, guides, packers and outfitters on federal lands all over the country. And we help ensure that they are treated fairly by the government and their interests are protected.
To assist National Park Service concessioners, we have prepared A Reference Guide to the Legal Basics For NPS Concessioners (revised 01 17 2019).
To assist our clients with Forest Service special use permits, we have prepared a single, comprehensive index of the contents of the Forest Service Manual and Handbooks, along with a presentation on how to access and use those documents.
And if you operate a ski area on US Forest Service land, we have prepared a compilation of selected Forest Service Manual and Handbook sections unique to ski areas that can be found here.
For outfitters and guides, we have also prepared a basic summary of the more basic rules which are set out in the Forest Service Manual and Handbook, which can be found by clicking here for our Outfitters and Guides Compliance Manual.
Winning a concession contract or special use permit
It takes a lot of expertise to prepare a successful proposal for a federal concession contract or special use permit. And the competition for these contracts and permits is growing more intense. We have years of experience and can provide strategic legal consultation and assistance to help you ensure your proposal is responsive to the agency’s solicitation.
Even when you have prepared the winning proposal, the government may not recognize that fact. Or, other bidders may attempt to have your award overturned. We have participated in successful bid protests on behalf of clients whose proposals did not receive a fair evaluation. Also, we have successfully assisted the government in defending decisions to select our clients in the face of challenges by other offerors.
The most important part of a successful protest is knowing whether you have a good case or not. We can help you make that assessment. You also need a strong advocate who has the ability and experience to pursue your interests in whichever forum is best suited for your case. We are that advocate.
Ensuring the government is fair in administering your concession contract or special use permit
After you obtain a concession contract or special use permit, the key is ensuring that the agency administers your agreement in a fair manner. To do this, it is critical that you are aware of all the various laws and policies that apply to that oversight. These authorities can impose obligations on the government, and, at times, on you. Thus, you need to understand all of these. Sometimes they are set out in federal statutes, sometimes they are buried in obscure agency policy manuals. These include the Forest Service Manual, Forest Service Handbook and the National Park Service’s Management Policies. Over the years, we have assembled an array of internal agency memoranda which address and provide helpful guidance on many of the issues faced by concessioners.
We also can keep you advised of the latest developments that affect your operations, such as changes to management policies or new agency regulations. We do this work so you can focus on what you do best.
Filing a lawsuit against the government
Sometimes, you have no choice but to file an appeal or lawsuit to protect your rights. While litigation is always a course of last resort, sometimes it is necessary. We are well-seasoned litigators who have the experience to handle whatever legal action you may need to pursue.
When the National Park Service refused to follow its own laws and regulations and award a concession contract to our client, we filed a lawsuit after negotiations were unproductive. The result of the lawsuit was the unprecedented action of the NPS agreeing to award the contract to our client. Eco Tour Adventures, Inc. v. Zinke, Civ. Case No. 14-02178 (D.D.C. 2017).
When the federal government closed concession operations due to the budget impasse in 2013, we stood up for our clients. We headed to court and immediately got our clients back up and operating. National Forest Recreation Association v. Tidwell, Case No. 13-cv-1287 (E.D. Va. 2014); Weber and The Parkway Inn, Inc. v. Woods, Civ. No. 13-cv-263 (2013) .
When the Forest Service prevented our client’s operations under a special use permit, we stood up for our client. We brought the case to a judge for a fair hearing and obtained payment for his assets. The Sweetwater, A Wilderness Lodge LLC v. United States, 72 Fed. Cl. 208 (2006). In addition, we obtained an award for his attorneys fees under the Equal Access to Justice Act. The Sweetwater, A Wilderness Lodge LLC v. United States (EAJA award decision).
When the National Park Service refused to pay our client the fair value of its assets, we stood up for our client. We obtained a court order declaring that the National Park Service’s methodology for the valuation was incorrect. Seven Resorts, Inc. v. United States, 112 Fed. Cl. 745 (2013).
These are just a few examples of when a lawsuit may be appropriate and beneficial.
Getting involved in federal land management which impacts your operations
We ensure our client’s interests are represented when the government is revising its land management plans, such as Forest Plans or National Park General Management Plans. As we teach our clients, it is important to participate in the process from the beginning. This involvement ensures that you do not waive any rights to challenge the outcome of that process. We’ve learned that it’s the squeaky wheel whose interests are addressed.
Areas Where Our Clients Operate
We have worked with clients all over the country, operating in all of the following areas:
Acadia National Park; Alcatraz Island; Bandelier National Monument; Blue Ridge Parkway; Buffalo National River; Cape Lookout National Seashore; Death Valley National Park; Delaware Water Gap National Recreation Area; Denali National Park and Preserve; Dry Tortugas National Park; Everglades National Park; Fort McHenry National Monument and Historic Shrine; Fort Sumter National Monument; Gateway National Recreation Area; George Washington Memorial Parkway; Glen Canyon National Recreation Area; Golden Gate National Recreation Area; Glacier National Park; Glacier Bay National Park & Preserve; Grand Canyon National Park; Grand Teton National Park; Gulf Islands National Seashore; Lake Mead National Recreation Area; Lake Roosevelt National Recreation Area; Lassen Volcanic National Park; National Capital Region, National Park Service; National Mall and Memorial Parks; National Parks of New York Harbor; Olympic National Park; Sequoia and Kings Canyon National Parks; Statue of Liberty National Monument; Virgin Islands National Park; Yellowstone National Park; Yosemite National Park; White Sands National Monument; Wright Brothers National Monument; Angeles National Forest; Arapaho and Roosevelt National Forests; Ashley National Forest; Bighorn National Forest; Chattahoochee National Forest; Cherokee National Forest; Cleveland National Forest; Coronado National Forest; Custer Gallatin National Forest; Deschutes National Forest; Inyo National Forest; Lake Tahoe Basin Management Unit; Mt. Hood National Forest; National Forests and Grasslands of Texas; Oconee National Forest; Okanogan-Wenatchee National Forest; Pike National Forest; Pisgah National Forest; Sam Houston National Forest; San Bernardino National Forest; San Isabel National Forest; Sante Fe National Forest; Sequoia National Forest; Shasta-Trinity National Recreation Area; Shawnee National Forest; Shoshone National Forest; Sierra National Forest; Stanislaus National Forest; Tonto National Forest; Uinta-Wasatch-Cache National Forest; Umatilla National Forest; White Mountain National Forest; White River National Forest; Willamette National Forest; Willliam B. Bankhead National Forest
Types of Operations
Lodges; Marinas; Campgrounds; Pack Stations; Houseboat Rentals; Outfitters; Guides; Shuttles; Ski Areas; Ferries; Golf courses
Below are just a few examples of the many areas where we have provided assistance to concessioners over the years, bringing real value to their operations:
Rate increases: We recently helped a National Park Service concessioner obtain approval of the full amount of its requested rate increase. The National Park Service initially rejected the rate increase. Using our knowledge of the agency’s internal procedures, we helped the concessioner appeal the denial. We provided a detailed analysis of the comparable rates which justified the increase. That appeal was also denied. However, due to our persistence, the National Park Service agreed to perform a new rate comparability study in the following months and involve the concessioner in that study. We then assisted the concessioner in ensuring that the agency had all the relevant information as to the comparable operations. Because of that new study, the National Park Service approved the concessioner’s rate increase in full. A copy of the latest agency Rate Administration Guide can be found by clicking here and a powerpoint presentation regarding the guide can be found by clicking here.
Determining If Local Laws And Taxes Apply To Your Operations: We have assisted our clients in understanding which state and local laws and taxes do and do not apply to their operations. Many state and local laws and taxes are not applicable to their operations by law. However, because each Park or Forest is unique, a specific analysis of the origin of the federal unit is necessary. In addition, we have successfully challenged taxes imposed by local authorities, obtaining decisions that the tax did not apply to our client’s operations. In one case, we successfully demonstrated that the applicable statute of limitations prevented the local authority from collecting back taxes which it alleged were owed.
Determining If Federal Labor Laws Apply To Your Operations: We also assist clients in navigating through the complex federal requirements to determine their legal obligations as to wages and benefits paid to their employees. There are many federal laws and regulations that may apply to both contractors and permittees. These include the Fair Labor Standards Act, the Service Contract Act and the regulations implementing a federal contract minimum wage as directed by Executive Orders. There are also many exemptions, and exemptions to exemptions, that can apply.
Protecting your Leasehold Surrender Interest (LSI): We assisted an NPS concessioner in obtaining an LSI interest in property it was required to construct under its contract. The agency initially informed the concessioner that its policy stated that the property did not qualify for LSI. Most concessioners would accept this response as the end of the matter. We did not. Because of our experience in this area, we were aware that the agency’s policy handbook was not binding on anybody, even the agency. We were able to provide the agency with a thorough analysis of the legal basis for why the property did in fact qualify for LSI. As a result, the agency then agreed that its policy was in error and that the property did qualify for LSI.
Possessory Interest and LSI negotiations: We helped a National Park Service concessioner obtain a prompt and favorable value for its possessory interest through settlement discussions. Given our extensive experience in resolving possessory interest disputes, we were able to demonstrate how the agency’s own methods for calculating these values supported a substantial value for the concessioner’s assets. Also, we filed a successful legal challenge to the National Park Service’s methodology for valuing our client’s assets. As a result, the court held that the agency owed the concessioner the full sound value of the structures.
Reversal of Agency Suspensions of Permits and Contracts: We have represented both NPS and Forest Service concessioners in successful challenges to suspensions of their contracts. Taking advantage of the agency’s appeal process, we assisted a Forest Service outfitter in appealing an immediate suspension of its operations. We were able to get the Forest Supervisor to agree that the agency had violated the specific procedural and legal requirements for the suspension. We also assisted both an NPS concessioner and Forest Service permittees in challenging the agencies’ decisions to suspend their operations during a recent government shutdown. Those efforts involved bringing lawsuits in federal court.
Expanding Services: We have assisted Forest Service permittees in expanding their authorized operations. These expansions allowed them to provide new recreational services.
Compensation for Permit Revocation: We have worked with Forest Service concessioners when the agency effectively terminated their Term Special Use Permits but the agency claimed nothing was owed to the permit holder. Also, we established for the very first time in court that Forest Service Term Special Use Permits constitute legally binding contracts. In that case, we demonstrated that the Forest Service’s actions had terminated the permit in the public interest and the court awarded the permittee the value of the resort at issue as well as its attorneys’ fees. In addition, we assisted another Forest Service permittee obtain a payment from the Forest Service after it shut down the permit due to the threat of a mudslide.
Timely Issuance of New Forest Service Permit: We have assisted Forest Service special use permit holders obtain new permits in a timely manner.
Challenging or Defending Award Decisions: We regularly represent concessioners in either challenging or defending agency decisions to award concession contracts. We have worked with the National Park Service to help them successfully defend an award decision to our client. In addition, we have successfully challenged their decisions to award contracts to our client’s competitors. Our experience also includes filing protests at the U.S. Court of Federal Claims, the United States District Court for the District of Columbia and the Government Accountability Office. Notably, we have over 25 years of experience in litigating government contract matters.
Providing Legal Advice on Terms of Solicitations: We assist our clients in understanding the rules and procedures which apply to bidding for concession contracts. We also have successfully protested terms of solicitations which our clients believe are inaccurate or unreasonable.
Protecting Your Water Rights: We recently helped a Forest Service permittee who was challenging the validity of a water rights clause. The Forest Service insisted the clause needed to be included in its new special use permit. Taking advantage of our strong working relationship with the National Forest Recreation Association, we demonstrated to the Forest Service that the water rights clause had effectively been prohibited by a prior court decision. As a result, the agency agreed that the clause should not be included in the special use permit.
Determining What Environmental Analysis, If Any, Applies: We work with permittees to determine which level of environmental review, if any, is required under the National Environmental Policy Act (NEPA). Often times, a categorical exclusion can be applied. This exclusion eliminates the costs of environmental review and its accompanying delay.