1839 Newcomb Street Porterville, CA 93257 (559) 784-1500 TDD: 559-781-6650 FAX: 559-781-4744 Sequoia National Forest Giant Sequoia National Monument United States Forest US Department Service of Agriculture File Code: 2720 Date: JUL 28 2015 VIA E-MAIL AND U.S. MAIL Kevin R. Garden The Garden Law Firm, PC. 901 North Pitt Street, Suite 325 Alexandria, VA 22314 Re: Boyden Cavern Adventures Tours, Inc.?s Term Special Use Permit Dear Mr. Garden: I am writing in response to your letter dated June 15, 2016, regarding Boyden Cavern Adventures Tours, Inc.?s (Boyden Cavern Adventures) access to the Boyden Cavern on National Forest System (NFS) lands in the Sequoia National Forest under Boyden Cavern Adventures? term special use permit (Permit). The Permit authorizes Boyden Cavern Adventures to operate public tours of Boyden Cavern and to operate and maintain federally owned improvements associated with Boyden Cavern, including the trail bridges accessing Boyden Cavern. Background Doe to the extreme ?re conditions during the Rough Fire last August, Iissued orders on August 14, 2015, closing Hume Lake and access to the Monarch Wilderness. On August 16, 2015, Iissued an order closing access to Boyden Cavern. The Fresno County Sheriff?s Of?ce began evacuation of the Hume Lake Ranger District for public safety on August 18, 2015, and I issued an order closing most of the Hume Lake Ranger District to the public on August 20, 2015. In addition, on August 27, 2015, Iimmediately suspended the Permit per Forest Service regulations at 36 CFR 251.60(f) and clause VILC of the Permit to protect public safety. At that time, Inoti?ed Boyden Cavern Adventures that the suspension would remain in effect until the Hume Lake Ranger District was reopened to the public, public access to Boyden Cavern was restored, and the Forest Service had assessed the permit area for damage and determined that it was safe to Open it to the public. The Rough Fire burned some of the wood decking on the small permittee-owned trail bridge and most of the wood decking and side rails of the federally owned trail bridge that provide access to Boyden Cavern. The structural integrity of the steel I beams that form the base of the federally owned trail bridge is uncertain now because of exposure to the heat of the ?re. Consequently, the steel members must either be tested for integrity or replaced. If testing determines that the steel members are useable, the surfaces should be properly prepared and repainted to prevent future corrosion. The following lists key dates relating to the Rough Fire and actions taken in response to the burned trail bridges: Caring for the Land and Serving People Printed on Paper vii July 31, 2015 August 14, 2015 August 16, 2015 August 18, 2015 August 18, 2015 August 19, 2015 August 20, 2015 October 19, 2015 March 24, 2016 March 31, 2016 April 4, 2016 April 6, 2016 April 6, 2016 April 7, 2016 April 8, 2016 April 8, 2016 April 9, 2016 April 21, 2016 April 22, 2016 April 22, 2016 April 25, 2016 April 26, 2016 May 23, 2016 The lightning?caused Rough Fire started on the Sierra National Forest. Hume Lake and Monarch Wilderness were closed. Highway 180 into the Kings Canyon was closed. The mandatory evacuation was put into place. A Structure Protection Group was stationed at Boyden Cavern to protect Boyden?s Gift Shop and Residential Area. The Rough Fire jumped the Kings River and started burning in the Sequoia National Forest. Hume Lake Ranger District was closed. The Permit Administrator escorted Stephen Fairchild, President of Boyden Cavern Adventures, his family, employees, the insurance appraiser/adjuster, and a contractor into the canyon to assess the damage at Boyden Cavern from the Rough Fire. Stephen Fairchild met with the Permit Administrator to discuss his 2016 Annual Operating Maintenance Plan. He gave the Permit Administrator some plans to review to rebuild the two trail bridges. He was informed that the trail bridges needed to be inspected by a Forest Service Engineer. The Permit Administrator and the Forest Engineer completed an inspection of the Boyden Cavern area and the two trail bridges leading up to Boyden Cavern. The Forest Engineer sent his findings to the Structural Engineer in the Regional Of?ce in Vallejo, CA. Findings only addressed the federally owned trail bridge with extensive damage. Structural Engineer responded with comments. The Permit Administrator e-mailed Stephen Fairchild with the Structural Engineer?s comments. The Forest Service was con?rmed as the owner of the larger trail bridge with extensive damage. Stephen Fairchild asked if the Forest Service could barricade the parking lot and bathrooms to keep the public out before the highway was opened. Stephen Fairchild decided to wait until the road opened to go down into the canyon to work on the cavern damage. The Permit Administrator coordinated with Cal Trans and had rails installed in front of the parking lot and had Forest Service personnel place pad locks on the restrooms to keep the public out, as Stephen Fairchild requested. Received the Structural Engineer?s recommendation as to how the steel in the federally owned trail bridge could be tested. Stephen Fairchild was e-mailed the two outlined options for repairing the federally owned trail bridge (testing the steel in the trail bridge and repair or complete replacement of the bridge). The gate into Kings Canyon was officially opened to the public with restrictions on what areas were safe for the public to visit. Stephen Fairchild asked the Permit Administrator if he could drop his insurance. The Permit Administrator denied the request on the grounds that having continous insurance coverage is required under the terms of the Permit. Copies of the original plans for the trail bridge were made for Stephen Fairchild. Stephen Fairchild hired Civil Engineer Ron Belknap to conduct testing of the steel. Ron Belknap sent his findings and recommendations to the Forest Engineer, who forwarded it to the R0 Structural Engineer to see if Belknap?s recommendations could be used instead of the Forest Service?s recommendations for testing the steel. June 7, 2016 Forest Engineer received R0 Structural Engineer?s review of Ron Belknap?s steel testing and bridge repair proposal. June 8, 2016 Forest Engineer sent recommendations to Ron Belknap on steel testing and bridge repair and granted approval for an alternative steel testing method. N0 Basis for Compensation to the Holder We disagree that the Forest Service is required to compensate Boyden Cavern Adventures for revocation for reasons in the public interest under clause VILB of the Permit. The Forest Service has not revoked the Permit. Rather, the Forest Service has immediately suspended the Permit per clause VILC of the Permit for public safety and is analyzing what work needs to be done to reopen the trail bridges damaged by the Rough Fire. Clause VILD of the Permit provides that except for revocation for reasons in the public interest, revocation or suspension shall not give rise to any claim for damages by the holder against the Forest Service. The Sweetwater v. United States, 72 Fed. Cl. 208 (2006), is inapposite. That case involved revocation of a resort term permit for reasons in the public interest. Rocky Mountain Recreation of Utah, Inc. v. United States, No. 12-30C (Fed. was settled and has no value as precedent. Regardless, that case is also dissimilar because it involved a resort term permit that terminated in accordance with its terms and was revoked for noncompliance with its terms. Responsibility for Repair or Reconstruction of the Trail Bridges The permit holder is responsible for repair or reconstruction of the trail bridges. The first page of the Permit states that it is ?issued for the purpose of . . . operating and maintaining Government owned improvements listed below,? which include the trail bridge. In addition, Clause IV.F of the Permit provides: RISK OF LOSS. The holder assumes all risk of loss to the authorized improvements. Loss to the authorized improvements may result from but is not limited to theft, vandalism, ?re and any ?re??ghting activities (including prescribed burns), avalanches, rising waters, winds, falling limbs or trees, and acts of God. If authorized improvements in the permit area are destroyed or substantially damaged, the authorized officer shall conduct an analysis to determine whether the improvements can be safely occupied in the future and whether rebuilding should be allowed. If rebuilding is not allowed, the permit shall terminate. Under clause IV.F, the holder has assumed all risk of loss to the authorized improvements, including the trail bridges accessing Boyden Cavern. Wild?re and other catastrophic events are an inherent part of the operating environment on NFS lands. The Forest Service does not guarantee or provide compensation for lost revenues when special use permit areas are closed. Nor is compensation provided when a permit area is not closed but is otherwise adversely affected due to wildfire, smoke, or road access restrictions. The negative effects of these events are inherent risks associated with operating on NFS lands. Moreover, clause of the Permit requires the holder to have property insurance for the authorized federally owned improvements, including the federally owned trail bridge. Clause further provides that at the sole discretion of the authorized officer, the Forest Service may require the holder to use all proceeds from property insurance policies ?to repair, rebuild, restore, or replace damaged Government property covered by the policy, or may obtain payment of those proceeds from the concessionaire or the insurance company.? Thus, under clause the holder, through the property insurance, not the Forest Service, is responsible for repair or replacement of the federally owned trail bridge. Insurance Premiums Clause requires the holder to have liability insurance while the Permit is in effect. Clause requires the holder to have property insurance for the authorized federally owned improvements while the Permit is in effect. Under the circumstances of this case, pending suspension of the Permit, I am willing to allow Boyden Cavern Adventures to suspend payment of the premiums for the liability insurance policy required by the Permit, provided the following conditions are met: 1. Boyden Cavern Adventures submits documentation from the liability insurer attesting that liability insurance coverage is merely suspended or has temporarily lapsed pending nonpayment of premiums due to suspension of the insured operations and can be reinstated upon repayment of premiums; and 2. Boyden Cavern Adventures provides documentation to the Forest Service of repayment of liability insurance premiums and reinstatement of the liability insurance policy once use and ocupancy under the Permit recommences. However, I am not willing to allow Boyden Cavern Adventures to suspend payment of the premiums for the property insurance policy required by the Permit. Continuous coverage under this policy is needed to fund the repair or reconstruction of the federally owned trail bridge. I sincerely regret the impact the Rough Fire has had and is continuing to have on your client?s business. We look forward to meeting with you and your client to discuss the issues addressed in this letter. Please contact Acting District Ranger, Carol Hallacy, (559) 338?2251, to arrange a meeting. Sincerely, Forest pervisor cc: Rep. Tom McClintock Carol Hallacy, Acting DR Jennifer White, Permit Admin. Steven Ray, For. Eng. Joshua Rider, OGC-SF