Dear Mr. Rivers:

We have completed our review of your November 20, 2003, appeal of Deputy Regional Forester for Natural Resources Roberta A. Moltzen’s October 10, 2003, decision to increase the Southern 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 Code of Federal Regulation (CFR) Part 251.

The Deputy Regional Forester’s decision to increase minimum annual land use fees for certain special uses was made pursuant to her authority to do so, as prescribed in federal regulations 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 Moltzen’s decision to increase annual minimum fees include the following:

1.     The (annual land use) fee shall be based on the fair market value of the rights and privileges authorized, as determined by appraisal or other sound business management principles.  36 CFR 251.57(a)(1); and

2.     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.  36 CFR 251.57(g).

You have raised concerns in your appeal of Deputy Regional Forester Moltzen’s decision and I will address each of them individually.

Appeal Point # 1:  Permit holders were not given sufficient time and opportunity to provide comments prior to the decision to increase the minimum fee.

Response:  During July and August 2002, notification letters from each respective National Forest in the Southern Region were mailed to all affected permit holders of the proposed minimum fee increase.  Then on September 8, 2003, all potentially affected permit holders were sent a letter informing them that the Southern Region would soon be making an official decision to establish new minimum fees.  In that letter, permit holders were given 30 days in which to comment on the proposed decision.  The decision to increase the minimum fees was made October 10, 2003, and you and all affected permit holders were given 45 days to file an appeal of that decision.

In a letter dated October 27, 2003, to the Regional Forester’s office, you submitted comments to the above referenced September 8, 2003, letter.  Those comments were submitted well beyond the 30-day period provided in the September 8^th letter, and were instead provided to the Forest Service during the 45-day appeal period provided to permit holders in the October 10, 2003, notification letter.  However, rather than dismiss your comments as being untimely, in a letter dated November 5, 2003, Regional Director of Lands, Minerals and Uses Thurman Harp, formally accepted your comments as a formal appeal of the Deputy Regional Forester’s decision to increase minimum fees.  Therefore, the Forest Service did provide you with the opportunity to have your comments considered by addressing them in this appeal decision. 

Appeal Point # 2:  You assert the fee increases are excessive and unjustified.

Response:  The minimum rental fee in the Southern Region (Region 8) has been $25 since 1984.  Market analysis of rental fees for similar uses was a joint effort between the Eastern (Region 9) and Southern (Region 8) Regions.  The two regions conferred on the process and shared information and analysis.  Each region then established new minimum fees.  The market data used by Region 8 indicated a range of minimum fees charged from $100 to $250.  Furthermore, market data was applied to the average rural land values for the States of Florida, North Carolina, and Mississippi.  That data indicated a range from $63 to $139.  The market data of Region 8 is consistent with the data collected in Region 9 and supports a $75 minimum fee for linear uses.  It is reasonable, therefore, to conclude that the minimum rental fee increase is warranted and not excessive.

Appeal Point # 3:  You claim a $75 minimum annual fee is unreasonably high for a minor use of National Forest System land.

Response:  The minimum fees for a special use authorization were established to reflect the minimum prices paid in the private market place.  Within a system that utilizes a minimum fee, rather than an actual fee, there will always be small minor uses that would seem to be overcharged.  However, establishing a “minimum fee” for special uses of NFS lands is a sound business management principle commonly used to assess land use fees for those types of special uses by which either the nature of activity being authorized, and/or by the very small amount of land being used and occupied, results in a very minor use and occupancy of NFS lands.  The Deputy Regional Forester made her decision to update annual minimum fees for the Southern Region after conducting an assessment of minimum annual land use fees being assessed and collected in the non-federal market place.  This assessment was done by identifying what owners of large parcels of land were typically assessing as a minimum annual land use fee when they authorized similar uses.

I have considered the arguments presented in your appeal and applicable laws, regulations, and Forest Service policies on the Southern Region fee increase schedule.  The record includes an adequate amount of comparable non-federal market data to support the Deputy Regional Forester’s establishment of a $75 minimum annual land use fee for road uses.  I find the methodology used to establish minimum fees was consistent with national policy, internal manuals, and handbooks.

I agree with Deputy Regional Forester Moltzen’s December 19, 2003, responsive statement explaining the special uses rental fee process.  Accordingly, Deputy Regional Forester Moltzen’s decision establishing updated minimal annual land use fees for special uses in the Southern 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:

Regional Forester, R-8 

Tina Tilley/Elaine Cloward/Cheryl Herbster, R-8

Christopher.Neilson@usda.gov

BTimberlake, WO-EMC

BBibb/ALRichard, WO-Lands

  Caring for the Land and Serving People