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appeals court found the

government's alleged failure to guard or warn may have been an operational activity subject to liability.

While the government's deci-
sion to encourage recreation
at Eldorado Canyon is the ex-
ercise of a discretionary func-
tion, the government's duty
to warn or guard against
hazards resulting from that
decision may nonetheless be
actionable ... The judgment
and decision-making involved
in day-to-day management of
a recreational area are not
the sort of decision-making
contemplated by the (discre-
tionary function] exemption.

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(Liability of the United States
for negligence based upon the
Federal Tort Claims Act]
shall not apply to ... any
claim ... based upon the
exercise or performance or
the failure to exercise or per-
form a discretionary function
or duty on the part of a
federal agency or an
employee of the Government,
whether or not the discretion

involved be abused. According to the United States, "the allegedly negligent acts or omissions of NPS employees upon which plaintiff's claims are based constitute the exercise of a 'discretionary' function or duty on the part of a federal employee." Consequently, the United States maintained that the Federal Tort Claims Act would not provide plaintiffs

As described by the appeals court, the discretionary function exception to the Federal Tort Claims Act "turns on whether the act or omission occurred on the 'planning' level of governmental activity or on the 'operational level." Planning functions would be immune from liability; operational decisions would not be immune. In other words, the deciding is immune; the doing is not.

In determining whether a particular governmental activity is an immune discretionary function or an operational decision subject to liability, the appeals court also considered "the ability of the judiciary to evaluate the act or omission and whether judicial evaluation would impair the effective administration of the government." Under the facts of this case, the

In

particular instance, the trial court had not considered the applicability of the discretionary function exception to the Federal Tort Claims Act. As a result, the appeals court remanded the case to the trial court to consider this isque. "On remand, the trial court must examine the alleged facts of commission and omission alleged (among them, the failure to post signs warning of the possibility of flood, the failure to repair or remove the earthen dam at one end of the canyon, and the failure to institute flood evacuation procedures) to determine whether, on the facts of this case, they fall within or without the discretionary function exemption." If the trial court found the discretionary function exemption inapplicable, the appeals court further directed the trial court to consider "the issue of liability of the United States for acts and omissions of NPS employees under Nevada tort law."

large part free to select the
means of implementing the
contractual requirements.
The degree of federal authori-
ty to supervise and control
the day-to-day operations of
ECR that is required . . . is

simply lacking. The appeals court, therefore, affirmed the judgment of the trial court that the United States could not be held liable for the alleged negligence of ECR's employees because the concessionaire was an independent contractor. Nevertheless, the appeals court, with one judge dissenting, reversed the summary judgment in favor of the United States and remanded the case to the trial court to consider the alleged negligence of NPS employees under the FTCA and Nevada Law.

The appeals court agreed with the trial court that the United States could not be held liable under the Federal Tort Claims Act for the alleged negligence of the concessionaire and its employees. The Federal Tort Claims Act provides liability for the negligence of "agents" of the United States. According to the appeals court, "the United States is not liable under the FTCA for the negligence of its independent contractors."

Given the facts of this case, the appeals court concluded that "the trial court did not err in finding that (the concessionaire) ECR was an independent contractor."

(I]n the absence of the
authority of federal employ-
ees to supervise the day-to-
day operations of a contrac-
tor, the mere ability of the
government to compel com-
pliance with federal standards
is not sufficient to create an
agency relationship .
While by contract the federal
government may fix specific
and precise conditions to im-
plement federal objectives,
such restrictions required by
regulation do not convert the
acts of entrepreneurs into fed-
eral governmental acts . .
(Applying these principles to
the NPS concessionaire con-
tract with ECR) the contrac-
tual provisions themselves,
while restricting the opera-
tions of ECR to some degree,
do not give the NPS authori-
ty to regulate the detailed
physical performance of con-
ducting a recreational facility
in Eldorado Canyon. Instead,
they leave the concessioner in

Mr. Kozlowski is an attorney and legal affairs consultant to the National Recreation and Park Association. He is the author of the Recreation and Parks Law Reporter.

Recreational Use Fees on Public Lands Administered by the Bureau of Land Management

by Bruce R. Brown

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Outdoor recreation use, both in frequency and type, is rapidly increasing on the public lands administered by the Bureau of Land Management (BLM). The need for more efficient and costeffective management of this increasing demand has resulted in new recreation program policy changes and special use fees. This article will look at BLM's new role in providing recreation opportunities, review the special recreation permit policy and fee schedules adopted in 1984, and discuss future challenges facing the permit program.

The BLM is a bureau in the Department of the Interior responsible for multiple use management of more than 300 million acres of federally-owned lands and waters. The vast majority of these lands and waters, located in the western states and Alaska, are open to the public to enjoy individual recreational pursuits. Although not as well known as the National Park Service or the U.S. Forest Service, the BLM is rapidly growing as a major provider of outdoor recreational opportunities. While visitation to national parks and national forests has increased moderately in recent years, use of BLM iands an. waters has increased from 68 million visitor hours in 1980 to 596 million visitor hours in 1983.

With passage of the Federal Land Policy and Management Act of 1976, Congress made clear its intent that the public lands generally be retained in Federal ownership and be managed on the basis of multiple use and sustained yield. Outdoor recreation is listed in that law as one of the multip':

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oped sites as authorized by the Federal Land Policy and Management Act and the Land and Water Conservation Fund Act of 1965. The BLM's intent is to recover administrative costs, and in the case of commercial and competitive use to recover a fair return for the use of public lands. Criteria for determining when fees are charged and how much to charge differ between developed and undeveloped sites.

Developed Sites

Bureau of Land Management

Developed campground for which a fee is charged.

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Major recreation facilities are developed, operated and maintained when they are important to the management of public lands and are generally unavailable from other governmental agencies or private entities in the local area. The BLM manages approximately 32 developed campgrounds with a total one-time capacity of 5,070 people. Campsite fees collected in 1983 totaled $88,000. The criteria for determining when and how much to charge are set out in Federal regulations and are similar to those of other Interior Department agencies. At least one of the following investment criteria must be satisfied:

1. A substantial Federal investment has been made in the facility;

2. The facility requires regular maintenance;

3. The facility is characterized by the regular presence of BLM personnel; or

4. The facility is utilized for the personal benefit of the user for a fixed period of time.

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Competitive use of public lands primarily consists of off-road vehicle events. Permits are issued to ensure protection of environmental resources. The high costs of preparing the required environmental analysis and extensive monitoring efforts are a significant factor in determining fees. The fees for a competitive use permit, phasing in over a 3-year period are:

Undeveloped Sites

In addition to developed sites, use fees may be charged at certain undeveloped sites. These fees are for special recreation permits issued as a means to protect resource values, control user conflicts, and promote visitor safety. Permits may be required for individual use in certain areas and for competitive or commercial recreational uses of public lands or waters. In 1983 BLM issued several thousand special recreation permits in 135 management units and collected $507,000 in fees.

The amount charged for a special recreation permit differs for individual, competitive and commercial uses of undeveloped areas. All fees are to be fair and equitable, taking into consideration the direct and indirect cost to the government; the benefits to the recipient; the public policy or interest served; the comparable recreation fees charged by nonFederal public agencies; the economic and administrative feasibility of fee collection; and other pertinent factors.

Most of these areas requiring individual permits are popular stretches of whitewater rivers receiving heavy use. Fees are charged only to recover the costs of issuing and administering the permit, not for the activity itself or any value derived therefrom. Phasing in over a 3-year period, fees for individual permits are $.50/ user day in 1984, and will be $1/ user day in 1985 and $1.50/user day in 1986. These individual permits are issued either on a firstcome, first-served basis or by a lottery system.

1984—$1.35/user day or 3 percent of gross receipts, whichever is greater.

1985–$1.65/user day or 3 percent of gross receipts, whichever is greater.

1986—$2.00/user day or 3 percent of gross receipts, whichever is greater.

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Individual Permit Fees

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Permits for individual use are limited to a few areas where the maximum allowable use has been reached (as determined by the area management plan) and use must be controlled to meet the areas' adopted recreation management objectives. Applicable management objectives may include: limiting encounters with other users (such as on a wild river or in a wilderness area); reducing destructive im

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