- - Thursday, March 17, 2016

ANALYSIS/OPINION:

Recent news stories from across the country have revealed the federal government as the worse possible neighbor for Americans who value property rights: the rule of law, the power to exclude others from their land, and the ability to use land on which they pay taxes. A tale out of Washington State, however, involving a private concessionaire within a unit of the National Park Service (NPS), reveals that the federal government is a worse landlord, one that holds the rights of its tenants in the lowest regard, believes itself unconstrained by the law of the land, and uses its power and its hundreds of lawyers to beat American citizens into submission. Whether it will get away with such tactics this time remains to be seen.

Since 1988, Ed and Carol Wimberly have owned and run Lake Roosevelt Vacations, Inc., a private concession in Lake Roosevelt National Recreation Area, a unit of the NPS on Lake Franklin D. Roosevelt near Kettle Falls, Washington. Lake Roosevelt is in reality, the Columbia River, tamed by Grand Coulee Dam, which once was immortalized by singer Woody Guthrie as the “Biggest Thing That Man Has Ever Done.” Not as tall as Nevada and Arizona’s Hoover Dam (550 to 726 feet), but twice as wide (5,223 to 1,244 feet), it is the country’s largest hydropower producer supplying electricity to all eleven western States. The lake, and hence NPS jurisdiction, encompasses 83,000 acres, runs 151 miles, and covers 600 miles of shore line; the Wimberlys’ marina lies 100 miles upriver from the dam, 85 miles northwest of Spokane, and fewer than 30 miles from the Canadian border.

The Wimberlys open their marina from the first of June through the end of October, at which time they rent out big houseboats that sleep thirteen, along with runabouts, kayaks, paddleboards, and skis to tour and enjoy “some of the finest beaches and coves to be found anywhere on the Columbia River.” The Wimberlys are committed to keeping it that way by doing their part to “eliminat[e] environmentally unfriendly [outboard] engines” and “to prevent any contaminated water from [entering] Lake Roosevelt.” Moreover, as “an authorized concessionaire” of the NPS, their prices are approved by the agency; in fact, all of their activities, including when they start up and when they close down, what buildings they use, and when, where, and how those buildings may be built are heavily regulated.

To ensure that concessionaires — key to enjoyment of the “pleasuring grounds” that are the national parks — are treated fairly, Congress enacted the Concession Policy Act of 1965 to assure: 1) a possessory interest in their property, 2) the sound valuation of that property and 3) a guaranteed right of renewal. Thus, concessionaires know investments in their facilities are protected, not just financially and as a matter of law, but also in terms of NPS goodwill. In 1998, Congress enacted the Concession Management Improvement Act to enhance efficiency and to expand competition, but still protected the property rights of concessionaires.

Thus, in 1999, when the NPS asked the Wimberlys, as part of their contract renewal, to construct a floating fuel dock and to use that dock to fuel their watercraft and those using the marina, they agreed. Environmentally it made sense, but cost a bundle — over $200,000. In addition, the NPS spent taxpayer funds to dig up the buried fuel storage tank. Therefore, the Wimberlys were stunned that the NPS, in its prospectus for a new contract in 2017, did not designate the fuel dock as a “Leasehold Surrender Interest,” a term of art from the 1998 act for “capital improvement[s].” Although the Wimberlys’ lawyer fired a shot across the agency’s bow, it is holding firm. The NPS does not want the fuel dock; in fact and incredibly it apparently will order the next concessionaire to buy a fuel tank and bury it. The Wimberlys do not plan on letting that happen.

William Perry Pendley, a lawyer, is president of Mountain States Legal Foundation in Denver and author of “Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why it Matters Today” (Regnery, 2013).

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