CHAPTER 8 RECREATIONAL DEVELOPMENTS ON NATIONAL FOREST SYSTEM LANDS

• Jurisdiction: United States

Public Land Law II
(Nov 1997)
CHAPTER 8
RECREATIONAL DEVELOPMENTS ON NATIONAL FOREST SYSTEM LANDS
James P. Perry
Ellen R. Hornstein
U.S. Department of Agriculture Office of the General Counsel Natural Resources Division

TABLE OF CONTENTS

SYNOPSIS

I. Background

A. Purpose

B. Scope and Types of Recreation

C. Trends and Changing Priorities

II. Categories of Recreational Use

III. Legal Issues Associated With Recreational Use Generally

A. Tort Liability

1. The FTCA

2. State Tort Law

3. Indemnification, Insurance, and Waivers of Liability

B. Cost Recovery

1. Use and Admission Fees

a. The Land and Water Conservation Fund Act

b. Recreation Fee Demonstration Program

2. Application and Permit Fees

IV Forest Service Authority to Regulate Recreational Use

A. Special Uses

B. Noncommercial Group Uses

C. Concessions

V. Trends in Concessions Management

A. Campground Concessions

B. Private/Public Ventures

C. Concessions Management Reform

1. Forest Service Reform Initiatives

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I. Background

A. Purpose of this Paper

The purpose of this paper is to provide an overview of current legal issues associated with recreational use on the national forests. The discussion is not exhaustive in terms of the number of topics addressed or the level of analysis of each topic.

B. Scope and Types of Recreation

The Forest Service, an agency of the U.S. Department of Agriculture, manages the National Forest System, which contains 191.6 million acres spread over 155 national forests and 20 grasslands in 44 States, Puerto Rico, and the Virgin Islands.¹ The Forest Service provides more outdoor recreation opportunities than any other agency, system, or organization in the United States.² Recreational activities in the National Forest System drew over 850

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million visits in 1996.³ Examples of these activities include backpacking, camping, hiking, picnicking, swimming, horseback riding, fishing, hunting, wildlife viewing, driving for pleasure, photography, wilderness use, and boating.

C. Trends and Changing Priorities

As Mike Dombeck, the Chief of the Forest Service, has said, the agency is undergoing "truly profound" changes.⁴ Previously, "commodities such as timber drove...[the agency's] budgets,...[its] incentive and reward systems; it even drove a fair amount of...[the agency's] wildlife and fish habitat work, watershed restoration, and recreation projects."⁵ In the past ten years, timber sales on Forest Service lands has gone from approximately 12 billion to four billion board feet. In contrast, in 1980, 560 million recreational visits were made to the national forests, compared to over 850 million by 1996.⁶ Projections indicate that by the year 2045, recreational use on the national forests will have increased to nearly 1.2 billion visits, driven by a growing population and changing recreation preferences.⁷ As public demand for

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more diverse benefits from the national forests increases, recreational values will play an increasingly important role in land and resource management.⁸ As society's priorities shift, the agency's challenge according to the Chief is "to link its processes, rewards, and incentives to the health of the land, to places where...[the agency intersects] with society's needs — not specific program areas."⁹ Today, recreation is listed as one of the Forest Service's top resource priorities.¹⁰

II. Categories of Recreational Use

Recreational use on the national forests ranges from the most primitive and least intensive to the more developed. The principal categories of use include (1) concessions operated by the private sector, such as ski areas, marinas, campgrounds, and outfitting and guiding, which accounted for 11 percent of recreational use in fiscal year 1996; (2) developed facilities, such as campgrounds, trailheads, boat ramps, picnic areas, and visitor centers, managed by the Forest Service, which accounted for 26 percent of recreational use in fiscal year 1996; and (3) dispersed recreation (general use of National Forest System lands where no developed facilities are involved, such as hiking, cross-country skiing, sightseeing, hunting and backpacking), which accounted for 57 percent of recreational use on the national forests in fiscal year 1996.¹¹

III. Legal Issues Associated With Recreational Use Generally

This paper will address two of the key legal issues associated with recreation use generally, namely, tort liability and cost recovery.

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A. Tort Liability

The Forest Service is concerned about addressing the safety of users of National Forest System lands. See, e.g., 36 C.F.R. §§ 251.54(h)(1)(vi) (relating to evaluation criteria for certain special use permit applications);¹² 251.56(a)(1)(iv); 251.56(a)(2)(iii)-(iv) (concerning terms of special use permits). Unfortunately, accidents occur on National Forest System lands, and people are injured. Tort cases are filed against the Forest Service for damages. These cases have involved such accidents as campers injured by a grizzly bear attack and injuries caused to swimmers by an alligator and a submerged tree stump. The agency's risk of liability depends on many factors, including but not limited to the specific facts of the case, federal tort law, especially the Federal Tort Claims Act (FTCA), and state tort law.

1. The FTCA

Prior to enactment of the FTCA in 1946, principles of sovereign immunity precluded imposition of liability against the United States for persons injured as a result of the negligence of federal employees, except through special legislation. By enacting the FTCA, Congress authorized private persons to file claims for damages caused by the negligent or wrongful acts or omissions of federal employees acting within the scope of their employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.¹³

Section 2680 of Title 28 of the United States Code specifies exemptions to the FTCA. If any of these exceptions applies, courts lack subject matter jurisdiction, since sovereign immunity has not been waived, and the suit must be dismissed. One of the most important exemptions is the discretionary function exception, which provides:

The provisions of this chapter and section 1346(b) of this title shall not apply to:

(a) Any claim...based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.¹⁴

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The seminal case on applicability of the discretionary function exception is Dalehite v. United States.¹⁵ Under Dalehite, a discretionary function or duty includes the initiation of programs and activities, as well as determinations made by executives or administrators in establishing plans, specifications, or operations. Where there is room for policy, judgment, and decision, there is discretion.¹⁶ Thus, no federal liability existed for the disastrous explosion in Texas City, Texas of ammonium nitrate fertilizer under a federal program to assist areas under military occupation after WWII.

There is a two-prong test for determining whether the discretionary function exception applies: (1) the challenged action must be a matter of choice for the acting employee;¹⁷ and (2) the conduct must "be of a kind that the discretionary function was designed to shield."¹⁸ To be shielded, the conduct must be grounded in social, economic, or political policy.¹⁹ Consequently, failure of the FAA policy of spot checking airplane design to prevent a crash based on faulty design did not give rise to liability.

The most recent leading case construing the discretionary function is Gaubert v. United States.²⁰ In Gaubert, the Supreme Court held that the discretionary function exception bars claims based upon acts or omissions that involve the exercise of discretion in furtherance of public policy goals. The Gaubert case held that the discretionary function exception covers acts involving an element of policy or choice, and reaffirmed that it is the nature of the conduct rather than the status of the actor that governs whether the exception applies.²¹ The Court held that since a discretionary act involves choice or judgment, discretionary conduct is not confined to the policy or planning level. Under Gaubert, as long as the conduct is grounded in social, economic, or political policy, conduct by the government at the operational level is also

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protected by the discretionary function exception.²² In sum, absent an explicit statutory duty or failure to follow agency regulations designed for the protection of the public, land management agencies will rely upon the discretionary function exception as a defense to tort liability.

2. State Tort Law

Every state has enacted a recreational use statute.²³ Recreational use statutes encourage landowners to make their land available to the public for recreational purposes without charge by limiting the landowners' liability for injuries occurring on their land. Recreational use statutes change the duty of care landowners owe those who enter onto the land for recreational purposes, as long as no fee is charged.

In the past, the Forest Service levied few fees for recreational use of National Forest System lands due to the relatively dispersed nature of the recreation activities involved, lack of legislative authority and longstanding agency policy. However, demand for developed recreation sites, budget problems and congressional direction have led to imposition of fees and thus and increase in potential liability.

Under most recreational use statutes, landowners breach their duty of care to persons recreating on their property only if the injuries result from wilful, wanton, or...