United States    Forest      Washington      14th & Independence SW

Department of    Service     Office          P.O. Box 96090

Agriculture                                  Washington, DC 20090-6090

                                                                              

                                             File Code: 1570-1 (L)

                                                        NFS 98-13-00-0008-A251

                                                  Date: JUNE 12, 1998




Mr. Robert E. Maxwell
P.O. Box 344                          CERTIFIED MAIL - R.R.R.

Cordova, AK   99574

Dear Mr. Maxwell:

We have completed our review of your February 19, 1998, appeal of Regional Forester Janik's  January 14, 1998, decision to increase rental fees for isolated cabins in accordance with  36 CFR 251.57 (g).  This section states:  "Except where specified otherwise by terms of a special use authorization, rental fees may be initiated or adjusted whenever necessary:  (1) As a result of fee review, reappraisal; or (2) a change in the holders qualifications under paragraph (b) of this section; and (3) notice is given prior to initiating or adjusting rental fees." 


A letter from the Chugach National Forest Supervisor, dated December 24, 1997, was sent to you giving notice of the adoption of the land use fee schedule and included the parameters under which appeals may be filed.  Since the appeal addresses the Forest Service decision to increase your fees, only issues related to the development of the Regional fee schedule may be appealed at this time.   The new fee schedule is the result of a two-year fee review and reappraisal for the Alaska Region. Your 1999 bill will reflect the new fees for annual occupancy.


In your appeal, you oppose the 1999 rental fee adjustment;  request that the Forest Service decrease your 1998 rental fee of $203.00 per year; and propose to sell the permitted site to the Forest Service for $25,000.

You state that your cabin was built on five foot pilings because of the water table and as a result of this,  at most times of the year, there is one to two feet of water under and around this site.  In December of 1988, you submitted sketches to reconstruct a 16'x16' cabin located in the Government Slough and was issued a special use permit by the Forest Service.  The selection and location of the site appears to be a free will choice to have the cabin built in this location.  It is also reasonable to assume that you were aware of the geologic and hydrologic conditions of the site at the time of your selection.  There is nothing in the record, nor have you provided any evidence to show that conditions have significantly changed since then.


A second issue raised in your appeal is that the site is only accessible by airboat or a float plane; the cost is very expensive; the water is undrinkable; and there is no outhouse facility due to the water table problem.  Many of the comparables used in the appraisal exhibit the same attributes.  This type of access has been demonstrated to be desirable because it ensures privacy and seclusion.   Again, it would be reasonable to assume that you were aware of the access problems at the time you applied for the permit and reconstructed the cabin.


The next point raised in the appeal is that due to the one time transfer clause in the permit, the cabin has been up for sale for three years and no buyer has shown interest.   In general, if the holder through death, voluntary sale or transfer, enforcement of contract, foreclosure, or other valid legal proceeding shall cease to be the owner of the improvement, the permit shall terminate. The Alaska Region has a separate policy to address cabins under the Alaska National Interest Conservation Act.  


Currently, your special use permit does not contain any provisions limiting transferability.  However, since your permit was originally issued, Forest Service policy for isolated cabins has changed.  The transferability of isolated cabins, such as yours, is now restricted.  Accordingly, the next permit holder will be governed by current policy and restricted to a non-assignable permit.   In addition, as long as the cabin remains upon National Forest System lands, fees will be assessed for the fair market value of the occupancy.


The final point raised in your appeal is that you are willing to sell this site to the Forest Service for $25,000 and thereafter remove the cabin and restore the site back to it's original state.  The permitted land  you now occupy belongs to the United States (National Forest System lands).  The terms of your special use permit, subsection 
C. License, states:  "This permit is a license for the use of federally-owned land and does not grant any permanent, possessory interest in real property, nor shall this permit constitute


 a contract for purposes of the Contract Disputes Act of 1978 (41 U.S.C. 611).  Loss of the privileges granted by this permit by revocation, termination, or suspension is not compensable to the holder." Therefore, the permit acknowledges no legal interest in land.  Accordingly, you have no vested interest in the land on which your cabin is located.  It is therefore inappropriate for the Forest Service to purchase land which the United States already owns.


In conclusion, you have not provided any additional evidence or data, which would indicate the process used in developing the Alaska Region land use fee schedule was incorrect, rather you have raised issues pertaining to the terms and conditions of the special use permit.  Accordingly, Regional Forester Janik's  request for dismissal of your appeal is granted.


This constitutes the final administrative determination of the Department of Agriculture unless the Secretary of Agriculture elects to review the decision pursuant to 36 CFR 251.99 (f).  We will notify you of the determination.


Sincerely,

/s/ Gloria Manning

GLORIA MANNING
Reviewing Officer for the Chief