Written Testimony of

THE AMERICAN LAND RIGHTS ASSOCIATION

by Paul R. Allman,

Director of Cabin Owner Affairs

before the

Subcommittee on Forestry, Conservation, and Rural Revitalization

of the Senate Committee on Agriculture, Nutrition, and Forestry

in consideration of S-1938,

The Cabin User Fee Fairness Act of 1999

March 22, 2000

We wish to thank the committee for this opportunity to comment on Recreational Residences on the National Forests, the current reappraisal process and the reasons for S. 1938.

(I) First, we wish to express our conviction that the current appraisal process makes no sense. It is clearly inequitable as well as being blatantly irrational and possibly illegal.

These cabin lots are not for sale, have never been for sale and, barring great changes and unforseen developments, will never be for sale. This is not a real estate transaction. This is simply a method of determining a fair "use fee" for a recreational use.

What are we really talking about here? A small site on which a cabin owner can maintain a small summer cabin, under strict guidelines...at no expense to the government. What possible sense does it make to have the use fees for the exact same use vary from district to district, from forest to forest, from region to region by over 150 times, 15,000%? This range of "user fees" from under $200 to $30,000 makes clear the current Forest Service appraisal process is blatantly flawed...and obviously non-rational.

We have discussed the policy direction and the Forest Service implementatiuon of this process with certified appraisers, professors and teachers of appraisal as well as authors of well known texts on the subject . Their feeling is that the agency appears to be in violation of the Uniform Appraisal Standards for Federal Land Acquisition created by the Interagency Land Acquistion Conference under the leadership of William Kollins, Chief of Land Acquistion, Energy and Natural Resources Division, Department of Justice, in l992. Succeeding witnesses will expand on this theme.

(II) We would also like to point out where we feel the agency has made errors in policy.

At a Santa Clara meeting of National Forest Homeowner members. and others, on Saturday, Feb. 7, 1998, Randy Karstaedt, Special Uses Group Leader, USFS Lands Division Washington Office, revealed what we felt was a brand new reading and interpretation of the regulations governing the fees charged for Recreation Residence Permits. This new interpretation, if implemented as proposed, will raise fees dramatically on many cabins immediately and on all in the long run.

At that meeting it was pointed out that through the ten years of negotiation and renegotiation during the 1980's which resulted in the national recreation residence policy, the cabin owners were assured and reassured that the language of the policy pertaining to appraisal and establishment of cabin fees would "never" result in permittee lots being appraised "as if" they were fee simple lots, because the many differences between permitted lots and fee simple lots made them obviously not comparable. We were repeatedly told that the appraisal had to begin with an estimated fee-simple value in order to arrive at some form of reasonably "objective" base figure.

Among the many differences which we were assured would be taken into account during the appraisal process were: (a) the legal constraints to which permittees were subject by Forest Service restrictions on size, color, landscaping, remodelling, etc.; (b) the limitations on rental; (c) the limitation on the use of the property as a year-round dwelling unit; (d) the fact that a long-term lease of fee simple land which required lessee investment would almost always entail an option to renew the lease, not present with permitted lots; (e) the obvious fact that long-term leases of fee simple property are legal assets which lending institutions will accept as collateral for a loan whereas permits are not; (f) the fact that banks will not give construction loans for improvements on permitted land whereas they will on improvements constructed on a long term lease property; (g) the fact that permittees may not deny public access across their lots where fee simple leasees may; and (h) the fact that permittees are not entitled to "tenant's rights" where fee simple lessees are.

These points were cited repeatedly to permittees during the years when the Recreation Residence policy was being formulated as "reasons" why any appraisal of the value of the land would not be comparable to fee simple land, but would reflect the lands "cash market value based upon its use as a recreational residence homesite." (This is a direct quote from the policy statement.)

To every one of these points Karstaedt, and John Shilling, Assistant Regional Forester, Region 5, who was also present that day, replied that it was considered by the agency that all these points of difference between a fee simple sale or lease were compensated for by the fact that permittees were only paying 5% per year of the assessed value instead of the 7 to 18% they claim would be a standard lease fee on fee simple land. (However, we discover that many agricultural land leases are at a 5% rate, and lower.)

When asked directly what the above underlined phrase meant, both men hedged, but said essentially that those words meant nothing.

This witness, some eight years ago, personally asked Ken Myers, then Deputy Director of Lands, USFS, now retired, whether the policy meant that our lots would be appraised at the same value as fee-simple land. He referred to the above underlined phrase and read it aloud in a public meeting, saying that it was clear that we would "never" be appraised at fee-simple market value, because that would be comparing apples and oranges.

Yet, it is now the announced interpretation of the policy to assess every permitted lot as if it were being offered directly for sale on the fee simple market and make the permit fee conform to 5% of that assessment. This has resulted in an increase in fees in some cases of over 1000%.

The absurdity of this position is obvious. If a private land owner were to offer a 20 year lease with the restrictions demanded by the Forest Service, there is genuine question whether anyone would be willing to lease the land at any price. Just the inability to control access to the land would make it worthless in most people's eyes.

It is our contention that the agency has either (a) consistently and deliberately misrepresented its position to the permittees and the public or (b) more likely reinterpreted the language of the policy so broadly as to have unilaterally and illegally changed their policy without notice.

The real answer to this problem is that the Forest Service should properly instruct its appraisers to discount their appraisal to provide for the many restrictions and limits included in the permit, as is provided in S-1938.

We would also like to comment on where we feel the agency has made errors in the application of its already flawed policy.

From region to region, forest to forest and district to district we encounter clear discrepancies in interpretation and applications of the guidelines published in the policy. It is absurd to have the incredible variations unveiled during this "reappraisal." Comparable permits according almost exactly the same amenities have permit fees varying by 15,000% or more. We all know that land values vary from location to location, but 15,000% variation for the same use is absurd.

Quite simply, the agency is not genuinely applying the policy evenly and fairhandedly across the nation. S-1938 is a clear, and we believe fair way to bring reason and equity to this appraisal process.

(II) Next, contrary to what the Forest Service and others have told you, cabin owners already pay their 'fair share,' and more.

*** Recreation Residence Permittees pay the highest use fees, per acre, of any of the many users of National Forest lands. Assuming an average lot size of 1/4 acre, cabin permittees, even under the old fee structure, were paying over $2,400/acre/ year, with many paying much more. Under the Forest Service's currently proposed fees, cabin owners would be paying an average of over $8,000 per acre.

With the exception of a couple of mountain tops with a $1,000,000,000 or so of electronic equipment on them, no other users on National Forest lands pay as much per acre. Cabin owners pay more per acre than:

ski resorts,

miners,

grazing permittees,

utility rights of way,

communication sites,

or any of the various camps and groups who use the forest lands.

*** Recreation Residence Permittees, by regulation, cannot restrict or prohibit public use of their "lots" and are generally prohibited from building any additional structures or 'improvements.' Their actual 'permitted area' over which they have any control consists only of the "footprint" of their cabin. By any 'real world' real estate standard, their actual leased 'area of control' already pays more per square foot than most commercial leases in comparable fee-simple areas.

As cabin owners already return the highest revenue per acre of any use in the National Forest System, it is foolish and absurd to insist that we are not paying our 'fair share.'

(III) The Recreation Residence Program is the most successful provider of recreation opportunities managed by the Forest Service.

*** All surveys we have seen indicate that Recreation Residences provide more RVD's (Recreation Visitor Days), per acre, than any other use of the National Forest System. Our surveys show that most of our permittees provide well over 500 RVD's each year. That is over 2000 RVD's per year per acre to a broad spectrum of the American people. In all surveys we have seen, the average Recreation Residence provides no less than 5 times and sometimes over 100 times as many RVD's as the average camp site.

*** Because of the nature of the recreation provided, they also overwhelmingly provide the greatest recreation time and opportunity to the retired, the elderly, and the disabled. Cabins are one of the few Forest Service recreation programs that actually do provide rich recreation experiences to the elderly and disabled...those Americans which, by law, the agency is directed to consider in its programs. Because of the nature of the cabin experience, these cabins are overwhelmingly, a "family" experience...unlike most other regular uses of the National Forests.

(IV) Given that the average "lot" size is under 1/4 acre, all of the 16,200 Recreation Residences occupy less than 4,000 acres of the 192,000,000 acres currently in the National Forest System, roughly .002%, two one thousandths of one percent.

This is less of the public lands than are permitted to, and generally exclusively used by, many profit making resorts...and we approve of that resort usage. And yet the agency tells you that our cabins take too much land away from "public use."

(V) You are also told by the agency that we are a "private use of public lands," with the implication that this is somehow "wrong."

First, this tells us that we are not members of the "public." I am sure that every member of this committee would agree that these retired school teachers, small businessmen - even government employees, are members of the public. But not the Forest Service. Not only is that inaccurate, it is patently absurd.

Second, we are unable to imagine a human use of the public lands that is not "private," at least for the period of use. Are we any more "private" than the extensive reservations of public lands for ski resorts, commercially operated campgrounds, mining reserves, logging reserves, etc. (many of which occupy, for their exclusive commercial use, more Forest Service land in a single activity than that occupied by all the Recreation Residences combined)? We believe those are valid and desirable uses of the public lands, and we think Recreation Residences are, too. One retired Forest Service officer told us the only "public" use of the National Forest he could think of was when the military held maneuvers there.

Third, there is no reasoning, no evidence, no logic to this "private use of public lands" phrase. There is no reason given why such use is bad ...or good. It seems, rather, the blind repetition of an ideological 'mantra' for those who wish all the public lands locked away from public use.

We are also told that we are a "priviledged elite." Aside from casting a hostile and insulting stereotype, this goes to the heart of this bill. If the Forest Service continues to raise these user fees as they have been doing, they will some have made a self-fulfilling prophecy by pricing middle class Americans out of these cabins and creating expensive 'ghettos' on the public lands.

(VI) We also wish to comment on the appraisal process as reflecting a larger national problem.

It is a simple historical fact that forest cabins as a recreational activity are deeply embedded in American culture. Our literature is steeped in the tradition. It is also very clear that mountain/forest cabins on private lands are widely available on the open market almost everywhere in the eastern United States. But this is not true in the West.

From agency documents we discover that only about 8% of forest lands in the East are in Federal hands, but roughly 82% of the forest land in the West is federally owned (excluding Alaska). This is an accident of history. However, it reflects on the problem at hand in that the population in the West has soared while the amount of land available has actually decreased through federal land acquisition programs.

In other words, the Congress and the Éxecutive Branch have created a situation where a steadily increasing demand for a traditional form of American recreation, the forest cabin experience, is slowly, thru Forest Service policies, being restricted in the west to only the wealthy. And many of your middle-class supporters are being forced out . While this is not a big political issue today, the signs that it may become an issue in the future seem to us to be on the horizon.

The answer seems clear. Here is the most revenue positive recreation program in the Forest Service "Recreation Spectrum," one which broadly serves the disabled, the elderly and families, and one which takes up only a miniscule amount of the Forest Service lands...and the number of cabins gets smaller every year. The agency has clearly refused to act to implement its own stated policies. Only the Congress has the power to direct the Executive Branch to act to address this problem through the creation of an environmentally and economically responsible answer to this clear public need.

Please, gentlemen, we plead for your help in protecting us from a powerful and seemingly insensitve bureaucracy which seems determined to deny us our rights and our property. Stop this process now...and direct the agency to arrive at a clear and equitable policy for the establishment of fair and reasonable fees for Recreation Residences. We ask you to vote to pass S-1938.

Thank you, gentlemen, for this opportunity to comment on the bill you are considering today.

Testimony submitted by:

Paul R. Allman

Director of Cabin Owner Affairs

American Land Rights Association

2316 Eunice St.,

Berkeley, CA 94708

(510) 525-7223