National Forest Homeowners

Mission Statement

"National Forest Homeowners is a member-directed organization representing cabin-owner recreation residence permittees on our national forests. NFH provides leadership, member information and assistance, and advocacy for continuation of all recreation residence cabins.  It is dedicated to educating its members and others in sound science stewardship of our national forests.

Note: All of our downloadable files are currently being converted where necessary to a pdf format. You can download a copy of the FREE Adobe pdf reader here.

 

Important Fee Suspension Update

Fee Suspension Has Been Rescinded!

About Your PermitsGeoff Anderson - NFH President
and Appeal Rights

FEE SUSPENSION REVERSAL
-UPDATE April 2009

            For those who have not yet heard, the fee suspension directive suspending 2009 fee increases beyond the 1.9% IDP-GPD factor was rescinded by the new Secretary of Agriculture. The Secretary acted on the advice of the Office of General Counsel that the suspension was without lawful authority. We have suggested a new approach to the Forest Service.
            For those permit holders facing substantial fee increases, they may appeal the fee itself and ask for a stay of the imposition of the increase pending resolution of the appeal. The appeal must be filed within 45 days of the date the billing. It is hoped (but not guaranteed) that the Forest Service will keep the appeals open until Congress acts. We have suggested this course of action to the Forest Service and they are reviewing the matter.
            A sample appeal form and stay language have been previously included in the website. The request to stay payment of the fee can be filed anytime the appeal is pending. You will have to allege grounds for the appeal and for a stay that apply to your situation, such as:

  • the fee is based on an improper or unsubstantiated appraisal
  • the fee is based on a misinterpretation of the CUFFA statute
  • the fee is many times more than the previous fee and is unfair
  • the holder of the permit will be unable to pay the fee and will have to abandon the property to the great expense to the holder and the government

Further, NFH and the Cabin Coalition 2 continue to engage in active discussions with Congress to amend the fee provisions of the CUFFA statute, which may result in major change in the fee methodology currently being used by the Forest Service.
            If you are interested in pursuing such an appeal and stay, you are encouraged to contact your legal counsel for advice and assistance.

Recent actions of the Forest Service have resulted in varying kinds of permits being offered effective 2009.  Some Forest offices are offering extensions to the existing permits and some are offering interim permits of short durations (less than one to ten years) while compliance issues are being addressed.  Many cabin owners are being offered new 20 year term permits (See Link).  National Forest Homeowners (NFH) is aware that some members and non-members alike are questioning some of the terms and conditions of the offered permits.  These cabin owners feel strongly that some terms are improper and unacceptable and wish to file an administrative appeal of the terms of the new permit. Concerns have been raised by cabin owners caught between the desire to sign their permits and the desire not to have their signatures be viewed as a waiver of their right to challenge the fee or other terms contained in the permits.

In response to cabin owner inquiries regarding these inconsistencies in the terms and conditions in permits, NFH is providing these general comments on the Forest Service’s appeal process as it relates to recreation residence permits.  However, NFH cannot provide cabin owners with legal representation nor legal advice as to what they should do in their particular situation.  This information is generic in nature and may not address specific concerns or situations of a tract or an individual cabin owner.  NFH is providing this information simply so cabin owners have some general awareness of the appeal process and why it could be important to them.  You may want to consult legal counsel with regards to your appeal.

There are roughly three kinds of concerns.

First, there is the concern with the new base fee (whether enumerated or not in the permit). A permittee must submit the new fee even if they are appealing the fee. However, any fee payment should be accompanied by a specific non-waiver of rights statement. (See link).

 Second, there is the concern specific to a particular permit that requires the modification of some existing item and/or to add something, like a new septic system or to waive a right such as a water right. Another example that might apply specifically to your permit is the approval of an existing item only “conditionally,” requiring removal on certain terms.  

Third, there is the concern as to the new language of the permit form itself, language that applies to everyone. This 20 year OMB Form, and the variations of its language that have been included in the shorter term permits, were instituted by the Washington D. C. Office of the Forest Service. Any resolution of concerns regarding this language likely requires a decision at the national level. However, if a large number of people who are dissatisfied with their permit start filing appeals to the general language, this may put more pressure on the Washington D.C. office to negotiate in good faith with NFH as it tries to address these unilateral changes to our permits.

Even if you believe the Forest Service will not grant your appeal, it still may be important for you to file it if you want to preserve your right to file or participate in a lawsuit that will challenge the validity of your permit terms, or take advantage of any subsequent changes in the rules regarding permits which benefit you.  If you have not fully appealed the objectionable terms of your permit, you may be legally precluded from pursuing or participating in any further efforts to challenge those terms before a court.

In addition, even if you lose your appeal, by having appealed you reserve your right to further challenge those terms in the next six years. Having this right is important because, if the rules related to the objectionable permit terms change within those six years to your benefit, you may be in a better position to receive the benefit of those changes.  If you do not appeal, you may be viewed as having waived that right which means you could be stuck with the objectionable terms.

There are good reasons to object. NFH believes that much of this language was added in violation of the language of the Cabin User Fee Fairness Act which indicates the continuing support of Congress for this program as follows:

The purposes of [CUFFA] are (1) to ensure, to the maximum extent practicable, that the National Forest System recreation residence program is managed to preserve the opportunity for individual and family-oriented recreation . . . .

16 U.S.C. § 6202. 

Further, the Forest Service Manual and Handbook language encourages the Forest Service to manage this program to encourage its existence, stating:

Recreation residences are a valid use of National Forest System lands.  They provide a unique recreation experience to a large number of owners of recreation residences, their families, and guests.  To the maximum extent practicable, the recreation residence program shall be managed to preserve the opportunity it provides for individual and family-oriented recreation.  It is Forest Service direction to continue recreation residence use and to work in partnership with holders of these permits to maximize the recreational benefits of recreation residences (italics added for emphasis).

FSM 2347.1 (see also   FSM 2721.23h for similar language)

As to the language in the new permit itself, generally, objections raised by our members include the following:Much of the new language is inconsistent with the language of  CUFFA and the direction in the Forest Service Manual and Handbook, as stated above.

  1. The entire document, but particularly the additions made since the issuance of the (1-94) version, is more appropriate for a commercial enterprise than for a non-commercial cabin permittee application.  

  2. The entire document seems punitive in nature and consists almost entirely of restrictions on the use of the cabin lot.  There is no balance between the contract rights and obligations of the Forest Service and the cabin permittee.

  3. Some subject areas, particularly environmental subjects, are dealt with multiple times which causes the document to appear to be a “cut and paste job” with added sections being taken from commercial special use permits. Repetitive terms are unnecessary and could imply extra meaning.

  4. Adding new language that purports to call this permit a license is inconsistent with current law.

  5. A number of the restrictions require expertise and involve expense to the cabin owner to comply that is far beyond the capacity of most cabin owners.

  6. Some of the new clauses are open-ended, lack specificity and give too much discretionary power to the district ranger.

The following is provided to aid you if you wish to appeal any part of the proposed permit which you think is unfair or improper.  An appeal must be made by the cabin owner named on the permit.  Individual situations may vary and you may wish to contact an attorney of your choice with any questions regarding your legal rights. We are not suggesting you take this decision lightly. Usually, you will need a compelling case, showing damage to you either as a property right you are losing, a monetary loss you will incur or similar prejudice to you.  See the appeal template for examples (Link Here).

Steps to filing an administration appeal noted in your permit at VIII D. Appeals and Remedies and that can be viewed in its entirety in the Code of Federal Regulations, at 36 CFR Part 251, Subpart C – Appeal of Decisions Relating to Occupancy and Use of National Forest System Lands. (See Link)

1.  Sign the permit and include with the permit an express statement that your acceptance does not constitute a waiver of the right to appeal (conditional acceptance).  (See link) for sample language to reserve your rights.  You may also want to include language requesting a stay of the appeal while you pursue a resolution with the Forest Service.  See the CFR and appeal template for further details.

In order to minimize any risk that your signing the permit constitutes an agreement with its terms or a waiver of your rights to object, it is suggested that you file an appeal before or concurrent with conditionally signing and returning the offered permit.  If you have already sent a signed permit back to the Forest Service with a non-waiver of rights statement, you can still file an appeal separately within the 45 day time period. Further, even if you did not conditionally sign your permit or undertake to appeal it at that time but now wish to appeal the permit or specific provisions, you may want to submit an appeal at this time as it may still be timely.

2. You have 45 days to file an appeal from the date on the notice of the written Forest Service decision.36 CFR 251.88(a)(2). This regulation refers you to 36 CFR 251.84(a) which lists the criteria that defines “notice”.  However, the Forest Service does not typically include these criteria in their notices and the Forest Service or a judge could conclude that you received effective notice of the Forest Service decision when you received a copy of your proposed permit or billing statement.  Due to this uncertainty, the safest method of proceeding to avoid any risk of untimely filing, is to treat the date on the permit or transmittal letter accompanying the offered permit or billing statement as starting the 45 day appeal notice.

With that said, due to the ambiguity in the way notice is provided by the Forest Service you should state in the appeal that your appeal should not be construed as indicating that you believe that any notice other than which complies with 36 CFR 251.84(a) can properly start the 45 day appeal period.

Disclaimer: The statements set forth in these comments should not be construed as indicating that National Forest Homeowners believe that any notice other than one which complies with 36 CFR 251.84(a) can properly start the 45 day appeal period.

3. (See Link) for sample notice of appeal and request for a stay language that could include any objections to the terms in the permit as well as fees charged.

4.  Appeals must be filed with the Forest Service officer who is the next higher line officer to the person who made the decision you are appealing. If decision was made (permit issued by) the District Ranger – two levels of appeal are available.

  1. The appeal for the initial review must be filed with the Forest Supervisor.

  2. If the initial appeal is denied, a second level of review may be filed with the Regional Forester within 15 days of the first level appeal decision.

  3. A Regional Forester’s decision on a 2nd level appeal constitutes the final administrative determination of the USDA and is not subject to further review by a higher level officer.

  4. If the decision was initiated by someone beyond the District Ranger level, see CFR 251.87 Levels of Appeal for further information.

  5. Send the notice of appeal and signed permit to the appropriate District Office (to the person who issued the decision).

  6. Send the notice of appeal and supporting documents to the Forest Supervisor.

  7. You should pursue all available levels of review possible of a denied appeal if you want to ensure that you have exhausted your administrative remedies and have not waived your legal right to pursue further action before a court.

Who We Are

National Forest Homeowners (NFH) is the largest organization of its kind in the United States.  With over 40 years of history and more than 5,000 members in all 24 states where Special Use Recreation Residences exist on National Forest lands.  NFH is a national and regional advocate for the cabin program.  NFH's professional staff and volunteer board of directors keep cabin owners informed on the issues they face and facilitate access to Forest Service Staff.  NFH is dedicated to protecting and preserving the cabin program well into the future.

NFH also acts as a watchdog, alerting and communicating to members upcoming forest policy changes and other important issues, sometimes before they become common knowledge.  Without NFH, cabin owners may not learn of these issues until it is too late to have any meaningful influence.

Since 1962, NFH has assisted permit holders with numerous issues involving their cabins.  Members receive a quarterly newsletter covering topics of interest and concern to permit holders.  Important issues are presented and analyzed, and courses of action are recommended.  In addition, regional forums and an annual convention provide materials and knowledge to empower members to better influence policy and legislation.  Members also have the ability to draw on the resources and political clout of the entire organization when issues such as new fee regulations, forest planning or permit renewals arise.  It's true that there is strength in numbers, and when you join NFH, you join over 5,000 like-minded cabin owners.

© 2007-2009 NFH