riverfront site than a hillside location) ⚫ collecting fees for secondary, more specialized, and costly interpretive programs such as special guided tours ⚫ increasing the cost effec tiveness of fee collection by using an honor system particularly for campsites ⚫ increasing commercial use License fees to reflect the cost to administer and monitor the commercial activity ⚫ increasing entrance fee revenue by extending collection hours, collecting during the off-season, etc. ⚫ centralizing fee collection, perhaps at the visitor center • identifying new areas for appropriate user fees (e.g., pet impoundment fees, parking fees at special events, reservation fees, and charges for dump station use) • extending campground stay limits when desirable • selling park brochures ⚫ increasing park entrance fees as well as the price of the Golden Eagle Passport through congressional legislation ⚫ charging for backcountry use/camping ⚫ charging for search and rescue activities and medical evacuations ⚫ initiating special use fees for weddings on-site, various facility uses, organized events, etc. A comparison of FY 1983 and FY 1982 recreation fee figures indicates a 19 percent increase in fee revenue. Much of this can be attributed to the newly established fees, fees raised to levels comparable to other service providers, and cost effective collection methods. In addition to fee activities, the park revenue management plans also considered private sector contributions (e.g., donation boxes in the parks, gift catalogs, fundraising campaigns) as well as options for shifting costs from the federal government to user groups, nonprofit organizations, or concessioners/permittees through cooperative agreements. The plans submitted in 1983 reveal there are a number of revenue opportunities as well as cost effective ways to collect revenues that can be readily implemented by the park units. Since then, measurable strides have been made towards generating additional revenues and efficiently and equitably financing services to the public. In addition, most revenue enhancement strategies make good management sense. Consider the following examples: • By having fee collectors staff their park entrance stations, Sequoia and Kings Canyon National Parks (California) reduce illegal woodcutting and poaching and ensure that park visitors are kept abreast of visitor safety information. • In 1983, Ozark National Scenic Riverways (Missouri) implemented a year round honor system for • Capitol Reef National Park • Boston National Historical Park (Massachusetts) charges for use of training and function rooms when the use is not directly related to the park mission. In just over six months, the fee schedule generated more than $2,000 to cover expenses • Donation boxes have been well received by both the public and park managers. Over 60 National Park Service units now have donation boxes set up to which visitors can freely contribute. Donation box receipts can be earmarked for specific park programs. The goal is not to recover all the costs associated with special activities, programs, or services at every park. That's unrealistic since fees and charges would rarely cover the full cost of providing public services. The compelling reason why NPS should increase entrance and user fees is equity, to shift a reasonable share of the cost of financing park operations from the general taxpayer to park users. The National Park Service's revenue management program should be fair to the user and nonuser alike, cost effective, and true to the mission of the Service. For instance, charging a fee to visit a national cemetery, battlefield site, or significant historic site (e.g., Independence Hall) may be inappropriate given the commemorative nature of the park unit. Those parks serving large numbers of low income users must evaluate revenue initiatives carefully to minimize discriminatory impacts. At other parks, the cost of collection (capital outlays, personnel costs, etc.) may simply exceed potential revenues. Our fee criteria must be flexible and take into account the park's user profiles and management concerns. The emphasis for an ongoing revenue management planning program is in line with both general taxpayer and user support for an equitable fee program. The public in general is very supportive of the user pay concept. And a study conducted by the Economics Research Associates found that park visitors generally accepted user fees as a reasonable and appropriate method for paying for park and recreation services. The trend toward user fees and charges does not end reliance on general fund appropriations as the primary source of budget. Appropriations will always be the mainstay of the national park system as with most public services. That's because practically everyone receives some benefits from public parks and wildlands. But financing the ongoing operation and maintenance of that system is a different matter. And it has long been public policy, as expressed by both Congress and the executive branch, to charge the special user more than the taxpayer at large for the special privileges received. Federal regulations state that "when a service provides special benefits to an identifiable recipient above and beyond those which accrue to the public at large, a charge should be imposed to recover the full cost to the federal government of rendering that service." (See Office of Management and Budget Circular No. A-25 on User Charges, September 1959.) The Land and Water Conservation Fund Act of 1965 (as amended) gives the Secretary of the Interior the authority to designate outdoor recreation areas at which entrance and user fees could be charged. The National Park Service has a commitment and responsibility to uphold these mandates. There are those who think that outdoor recreation has always been free and should continue to be free. The fact is recreation opportunities have never been free. No one wants to price anyone out of the national park system but neither do we want to unduly burden those who never visit these areas, either for economic or other reasons, with all the costs of making these areas and their services available. An equitable balance between taxpayer and user support is the goal. Lynne Nakata is an Outdoor Recreation Planner with the National Park Service's Division of Park and Recreation Technical Services in San Francisco, California. 50-792 0-85--8 Fees May Have Adverse Impact on Recreational Use Immunity by James C. Kozlowski, J.D. Fred Bell, NPS The most significant developments in public recreation law appear to be in the area of personal injury liability. All but a few jurisdictions have abolished the common law doctrine of sovereign immunity. Consequently, persons injured on public recreational facilities are now able to bring negligence suits against governmental entities under the various state tort claims acts. These statutes are modeled after the Federal Tort Claims Act which permits negligence suits against the United States, including actions for personal injuries at recreational facilities and sites. These tort claims acts allow units of the federal, state, and local government to be liable for specified torts, including negligence, like a private individual. Concurrent with the abolition of absolute immunity for government entities, approximately 43 jurisdictions have enacted recreational use statutes during the past two decades. Under these statutes, the landowner owes the recreational user no duty of care to warn against a hazard on the premises. Further, there is no implied assurance that the premises are safe for recreational use. The immunity provided by these statutes, however, is lost if a fee is charged or some other consideration is paid to the landowner. In addition, the landowner would remain liable for injuries attributable to his or her willful, reckless, or malicious failure to guard or warn against a known hazard on the premises. The applicability of these landowner liability statutes to state, local, and federal agencies is perhaps the most volatile issue in public recreation law. As stated above, public entities are liable for personal injuries like a private individual under the various tort claims acts. Some courts have, therefore, extended recreational use immunity available to governmental units on an equal basis with private landowners. On the other hand, some courts have denied recreational use immunity to public entities. In these decisions, the courts have narrowly construed the legislative intent of the statutes to encouraging private landowners to allow public recreational use. Where recreational use statutes have been applied to governmental entities, the effect of fees and charges on landowner immunity is oftentimes at issue. The following paragraphs describe a recent recreation-related personal injury decision where the nature of a fee or charge was an important factor in determining liability. This case report was contained in Volume I, Number 2 of the Recreation and Parks Law Reporter (RPLR). (RPLR is a quarterly subscription service of the National Recreation and Park Association. RPLR presents recently reported recreationrelated personal injury court decisions. Subscription rates are $45/ yr. for NRPA members ($90/yr. non-members). Make checks payable to "NRPA Law Reporter" and forward to: NRPA Membership, 3101 Park Center Drive, Alexandria, Virginia 22302.) RPLR Report #84-19: Nevada Landowner Liability Defense for Flash Flood in NRA In the case of Ducey v. United States 713 F.2d 504 (1983), three plaintiffs brought wrongful death actions against the United States under the Federal Tort Claims Act (FTCA) after their spouses drowned in a 1974 flash flood at the Lake Mead National Recreation Area in Nevada. The plaintiffs argued that employees of the National Park Service (NPS) and an NPS concessionaire had breached the duty of care owed to their spouses "to warn of or guard against the flood." The NPS provided a ranger station, boat launching ramp, and comfort station at the site, but did not charge entrance fees or user fees for these facilities. The NPS concessionaire, Eldorado Canyon Resorts, Inc. (ECR), maintained and operated revenue facilities at the area including: a cafe-store, boat slips, automobile fueling and boat service facilities, rental cabins and trailer spaces. Under a contract with the NPS, ECR was required to pay the United States 1-3/4% of the gross receipts from these facilities. In addition to purchases at the ECR store, plaintiffs' spouses had paid rental fees to the concessionaire for boat slips and trailer space. The trial court found the United States immune from liability under the Nevada recreational use statute. In pertinent part, this state landowner liability statute, Nev. Rev. Stat. 41.510 (1973), provided as follows: An owner, lessee or occupant of premises owes no duty to keep the premises safe for entry or use by others for hunting, fishing, trapping, camp ing, hiking, sightseeing, or for any other recreational purposes, or to give warning of any hazardous condition, activity or use of any structure on such premises to persons entering for such purposes... This section does not limit the liability which would otherwise exist for: (a) Willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity; (b) Injury suffered in any case where permission to hunt, fish, trap, camp, hike, sightsee, or to participate in other recreational activity, was granted for a consideration paid to the landowner On appeal, plaintiffs argued that the trial court had erred in extending the immunity of the state landowner liabiliy statute to the United States. As applied by the trial court, "the consideration exception to the Nevada recreational use statute... [was] inapplicable on the ground that the various forms of 'consideration' allegedly tendered. money for store purchases, moorage fees, and trailer rental fees were tendered not to the United States but to [the concessioner] ECR and that money paid to the concessioner is not payment to the Government." The United States had argued the consideration exception under the Nevada recreational use statute was inapplicable because no fees were received "in return for permission to participate in recreational activities." In the opinion of the United States, the consideration exception was applicable "only where a fee is specifically charged for permission to enter." The appeals court agreed with plaintiffs and rejected the narrow reading of the consideration exception espoused by the United States and adopted by the trial court. In the opinion of the appeals court, the statutory language supported a broad application of the consideration exception to the Nevada recreational use statute. [T]he language of the con- According to the appeals court, "the public policy underlying the adoption of a consideration exception to the Nevada recreational use statute is to retain tort liability in actions where the use of the land for recreational purposes is granted not gratuitously but in return for economic benefit." In the opinion of the appeals court, limiting the consideration exception of the statute "solely to direct payments of entrance fees or charges would extend the immunity of the statute beyond those persons whom the statutory policy would protect." Since the potential for profit alone is sufficient to encourage those owners who wish to make commercial use of their recreational lands to open them to the public, the further stimulus of tort immunity is both unnecessary and improper. Furthermore, where a landowner derives an economic benefit from allowing others to use his land for recreational purposes, the landowner is in a position to post warnings, supervise activities, and otherwise seek to prevent injuries. Such a landowner also has the ability to purchase liability insurance or to self-insure, thereby spreading the cost of accidents over all users of the land. An ability to spread risks exists regardless of whether the economic benefit the landowner derives is in the form of direct entrance fees or in the form of revenues from a connected economic enterprise. Concessionaires often operate revenue facilities such as boat slips in public recreational areas. As a result, the appeals court concluded that the consideration tendered here by the Users [plaintiffs' spouses] was in return for permission to participate in recreational activities in Eldorado Canyon in the sense of [the consideration exception] subsection... [to the Nevada recreational use statute]." According to the appeals court, the "consideration must be tendered directly or indirectly to a person who has the power to grant or deny permission to participate in recreational activities." In this case, "the concession agreement did not give ECR the power to deny permission to recreate in Eldorado Canyon." The appeals court, therefore, concluded that "consideration was tendered, directly or indirectly, to the United States in return for the permission to recreate in Eldorado Canyon." Under the facts of this case, the appeals court, therefore, concluded landowner immunity pursuant to the Nevada recreational use statute was not available to the United States. The appeals court, however, limited the application of the consideration exception to the facilities operated by the concessionaire, not the entire national recreation area. "By holding the consideration exception applicable on the facts of this case, we do not imply that the exception applies to a broader geographic area than that over which the concessionaire has the explicit or implicit power to grant or deny permission to recreate." Absent the immunity provided by the state landowner liability statute, the United States argued that immunity was available under the discretionary function exception to the Federal Tort Claims Act. In pertinent part, this section William A. Bake, NPS |