Dear Mr. Auman :

We have completed our review of your July 21, 2003, appeal of Regional Forester Randy Moore’s July 16, 2003, decision to increase the Eastern Region’s minimum annual land use fee for certain types of special uses of National Forest System (NFS) lands.  This review was conducted in accordance with 36 CFR 251.

The Regional Forester’s decision to increase minimum annual land use fees for certain special uses was made pursuant to his authority to do so, as prescribed in federal regulation and agency policy.  Two excerpts from the federal regulations governing the management of special uses of NFS lands that are particularly relevant to Regional Forester Moore’s decision to increase annual minimum fees include the following:

Furthermore, Regional Forester Moore’s decision to increase minimum annual land use fees was consistent with his special uses management responsiblities as outlined in Forest Service Manual 2715.04b, which directs that:

“It is the responsibility of the Regional Forester to establish regional minimum fees based on fair market value of the use authorized.  Update the minimum fee yearly using the appropriate index and provide for review every 5 years.”  (emphasis added)

In your appeal, you raise a concern that the Regional Forester’s decision to increase the minimum fee for your road access use to $75 annually is abusive and not supported by the facts.  In my review of the record, I found that Regional Forester Moore made his decision to update annual minimum fees for the Eastern Region after conducting an assessment of minimum annual land use fees being assessed and collected in the nonfederal market place.  He did so by identifying what the owners of large parcels of land were typically assessing as a minimum annual land use fee when they authorized uses of their lands

to others which were similar to the types of special uses that the Forest Service authorizes others to exercise on NFS lands.  He found 13 comparative sources for road access uses on non-federal lands, and found that the average minimum annual fee being assessed by the owners of those federal lands, to those who were using the land for road access purposes, was $86.  He chose to adjust that amount to a start point of $75 annually, as was reflected in his July 16, 2003, letter to you. 

He conducted a similar market analysis for pipelines, electric transmission lines, and telephone lines, and other uses that, in your appeal, you characterize as “money making ventures”.  His market analysis for those other types of uses found that the average minimum rental fees on non-federal lands ranged anywhere from $42 to $83 annually, and Regional Forester Moore chose to also adjust those raw data findings to an annual minimum fee of $75.  He did so based on what he found in the non-federal market, not because he was equating those types to road access uses.   

Secondly, you assert in your appeal that to establish a current minimum annual land use fee, the Regional Forester should have simply applied the annual Implicit Price Deflator-Gross Domestic Product (IPD-GDP) indexing factor to the 1988 minimum annual fee of $25, to arrive at a currnet minimum annual fee of $43.30.   Please note that the agency’s policy, as quoted on the first page of this letter, directs the Regional Forester to “update the minimum fee yearly using the appropriate index and provide for review every 5 years”.  That sentence calls for two distinct actions.  The Regional Forester’s July 16, 2003 decision was a review of minimum annual land use fees, which he revised according to his findings in the nonfederal market, and which he is supposed to complete every five years.  The annual indexing of minimum fees is, in accordance with agency policy, supposed to occur each year in between the 5-year review period.  Therefore, it would be inconsistent with agency policy to simply go back 15 years, to a minimum annual fee amount being assessed back in 1988, and simply apply a cumulative annual indexing to that amount to arrive at a new minimum annual fee amount for 2004.

I have considered the arguments presented in your appeal and applicable laws, regulations, and Forest Service policies on the Eastern Region fee increase schedule and find Regional Forester Moore’s decision to be reasonable and consistent with policy, regulation, and law.  The record includes an adequate amount of comparable non-federal market data to support the Regional Forester’s establishment of a $75 minimum annual land use fee for road uses.  You have not provided any additional evidence or data which would indicate that the process used by Regional Forester Moore was flawed or inadequate.  The revised fee schedule indicates that sound market valuation practices were used to set the fees for your special use authorization.  The fee schedule was discussed and explained in a series of meetings and letters throughout the Eastern Region.  I, therefore, find the methodology used to establish minimum fees was consistent with national policy, internal manuals, and handbooks.  I agree with the Acting Regional Forester’s October 17, 2003, responsive statement explaining the special uses rental fee process.  Accordingly, Regional Forester Moore’s decision establishing updated minimal annual land use fees for special uses in the Eastern Region is affirmed.  Therefore, your appeal of the fee schedule revision is denied.

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

cc:

Barbara Timberlake, WO