Jump to content
Sign in to follow this  
Followers 4
Konnarock Kid & Marge

Problems in Virginia National Forests?

Recommended Posts

A friend of mine sent me the following email:

 

"You will need to contact the district office of the forest you want to hide your cache. The different forests and their contact information can be found on our website. If after the pre-screening of your application determines that a special use permit is required, then the permit will be a temporary permit (FS-2700-25) good for less than one year and the minimum fee is $59.00. There may be restrictions on where you can hide your cache and some off-limit places depending on the forest, so when you contact the district office you will need to have a good idea of where you want to hide it and then they can tell you what restrictions pertain to that particular forest. District personnel will provide you with the application, any documentation requirements and issue the permit and billing."

 

Can anyone shed light on this? The whole state of Virginia, including the National Forests, has been pro-geocaching for quite some time. Previously, no permission was needed so going from 'free' to a one year permit for 59 bucks seems a little extreme. We are really into earthcaches so we are used to the 'permission' requirement, but as far as we know permission wasn't needed much less a whopping 59 dollar annual fee.

Any feedback?

Donations accepted! :ph34r:

P.S. As I understand it, my friend was turned down with a cache submission (by a reviewer) and was directed to contact his district NF office. He did and this is what was emailed to him.

Edited by Konnarock Kid & Marge

Share this post


Link to post

Policies in national forests vary a great deal. Certainly several forests require permits and fees to place caches -- although some exclude virtual caches (including earthcaches) from this requirement.

 

The web site for the Washington and Jefferson national forests appears to be down when I just checked it. But as a starting point, it might be good to find out the current policy -- and if there has been a change, when it was made and why it was done.

Edited by mulvaney

Share this post


Link to post

$59.00 is crazy. That's more than a premium membership. I wouldn't be placing any caches in those parks. Looks like they need to make some money. :laughing:

Share this post


Link to post

Looks like they need to make some money. :laughing:

 

I don't doubt that for a second. Have you been paying attention to the federal budget problems?

Share this post


Link to post

I recently received similar information about the Ocala National Forest, in central FL. You might want to ask your local ranger office because my local forestry folks said that I could list multiple caches on one permit. Getting a nice series published for $59 isn't nearly as bad. There are requirements for personal contact information to be written on each cache and that makes me a little nervous. We have hundreds of caches in our local forest so slowing down the proliferation might not be an all-bad thing and might lead to better quality. It's still frustrating though. I'm going to spend the summer planning out a good set of caches and turn the permit application in this fall. If something happens that they simplify/cheapen it before then, I'll be ready with some sooner.

 

Lets remember that "you catch more flies with honey" when dealing with the permitting folks too.

 

This is an opportunity to show our best or worst side to the land managers.

Share this post


Link to post

I recently received similar information about the Ocala National Forest, in central FL. You might want to ask your local ranger office because my local forestry folks said that I could list multiple caches on one permit. Getting a nice series published for $59 isn't nearly as bad. There are requirements for personal contact information to be written on each cache and that makes me a little nervous. We have hundreds of caches in our local forest so slowing down the proliferation might not be an all-bad thing and might lead to better quality. It's still frustrating though. I'm going to spend the summer planning out a good set of caches and turn the permit application in this fall. If something happens that they simplify/cheapen it before then, I'll be ready with some sooner.

 

Lets remember that "you catch more flies with honey" when dealing with the permitting folks too.

 

This is an opportunity to show our best or worst side to the land managers.

 

I agree with your quote that "you catch more flies with honey", but it doesn't smell like honey as to what is being thrown at area cachers. It isn't $59 for a series, it is $59 for a cache and the permit is for only one year! I also just heard that there are serious fines awaiting those who have already placed caches if the NFS can identify the cache owner.

Maybe you and I can afford the 59 dollars, but in these economic times, many cachers cannot or have better things to spend it on.

Again, we have no problem with getting permission as many unthinking cachers have helped to contribute to the problem of proliferation. :ph34r:

Share this post


Link to post

Unless there is some specific statutory authority otherwise, the Forest Service doesn't even get to keep that money -- normally when an agency collects fees, it goes back to the General Treasury fund, not to that agency's coffers. So if this is the new rule, it seems more aimed at discouraging caches in that forest than anything else.

Share this post


Link to post

I recently received similar information about the Ocala National Forest, in central FL. You might want to ask your local ranger office because my local forestry folks said that I could list multiple caches on one permit. Getting a nice series published for $59 isn't nearly as bad. There are requirements for personal contact information to be written on each cache and that makes me a little nervous. We have hundreds of caches in our local forest so slowing down the proliferation might not be an all-bad thing and might lead to better quality. It's still frustrating though. I'm going to spend the summer planning out a good set of caches and turn the permit application in this fall. If something happens that they simplify/cheapen it before then, I'll be ready with some sooner.

 

Lets remember that "you catch more flies with honey" when dealing with the permitting folks too.

 

This is an opportunity to show our best or worst side to the land managers.

Are you serious? I'm not paying anyone a dime to hide my caches. It is enough that I hide them.

 

These are National Forests, not State Parks. The National Forests have other ways to make money. $59/yr, while a lot for you or I, is not going to keep a National Forest running for one minute.

Share this post


Link to post

Part of the reasoning, as it was explained to me is that the forest service would be able to keep track of geocaches in areas where they had activities like timber harvesting and controlled burns planned. I agree that $59 is a lot, whether it is a series or single cache but it might be nice to get a call to say that there is a burn planned where you cache is and to have a chance to retrieve it before hand.

Share this post


Link to post

I found this regarding caching in Allegheny National Forest. It doesn't mention any fee. I think I would like to hear this directly from either an agent of the state, or from the reviewer.

Share this post


Link to post

Part of the reasoning, as it was explained to me is that the forest service would be able to keep track of geocaches in areas where they had activities like timber harvesting and controlled burns planned. I agree that $59 is a lot, whether it is a series or single cache but it might be nice to get a call to say that there is a burn planned where you cache is and to have a chance to retrieve it before hand.

Why would they need to do that? So I can go retrieve my $10 ammo can before a controlled burn? That doesn't make a lot of sense. Besides, Groundspeak already keeps track of that for them. 3rd party databases like that not only cost the taxpayer unnecessary money to create and maintain, but typically are not maintained well regarding archived and missing caches.

 

I'm not saying that your information is wrong, but that if it is correct, there are some knuckleheads behind that policy.

Share this post


Link to post

A friend of mine sent me the following email:

 

"You will need to contact the district office of the forest you want to hide your cache. The different forests and their contact information can be found on our website. If after the pre-screening of your application determines that a special use permit is required, then the permit will be a temporary permit (FS-2700-25) good for less than one year and the minimum fee is $59.00. There may be restrictions on where you can hide your cache and some off-limit places depending on the forest, so when you contact the district office you will need to have a good idea of where you want to hide it and then they can tell you what restrictions pertain to that particular forest. District personnel will provide you with the application, any documentation requirements and issue the permit and billing."

 

 

I bolded a different bit than the OP. Don't panic! It says "IF," that doesn't mean that every cache is going to require a $59 permit.

Edited by GeoGeeBee

Share this post


Link to post

This is news to me. Thanks for posting.

The local reviewers have a blurb about it on their profile pages.

(I hope it's not bad form to post)

 

http://www.geocaching.com/profile/?u=offline.cacher

http://www.geocaching.com/profile/?u=honeychile

 

The way I read it, permits are required for Virginia Parks but WMAs are off-limits. Disappointing for sure.

 

From the reviewers profile pages:

WILDLIFE MANAGEMENT AREAS (WMAs) : At this time ALL WMAs are off-limits for geocaching. The reason given by the State Wildlife Biologist Manager is that the WMAs are maintained by tax dollars and "as geocaching is not related to, nor does it support wildlife or habitat management, this activity is not allowed on our WMAs."

 

Official word is that caches on Virginia Wildlife Management Areas are NOT allowed.

 

This is surprising since VA seems to encourage geocaching in parks here: (http://www.dcr.virginia.gov/state_parks/geocache.shtml).

Share this post


Link to post

Why would they need to do that? So I can go retrieve my $10 ammo can before a controlled burn? That doesn't make a lot of sense. Besides, Groundspeak already keeps track of that for them. 3rd party databases like that not only cost the taxpayer unnecessary money to create and maintain, but typically are not maintained well regarding archived and missing caches.

 

I'm not saying that your information is wrong, but that if it is correct, there are some knuckleheads behind that policy.

 

I think the idea would be more to prevent families of geocachers from wandering into a controlled burn or logging operation. They could alert the CO beforehand and ensure the cache gets archived.

 

I would never pay a fee to hide a geocache, though.

Share this post


Link to post

National Forests are not listed specifically on either of the VA reviewer's profile pages.

 

If a cache is within the A.T. corridor, you'll need special permission. If it's within the Cascades National Recreation Area, you'll need special permission.

 

In the past, I've contacted the regional NFS rangers and they've always said, go for it but don't cause problems....

 

I'd say it is an unpublished policy for National Forests in VA as it's not online, nor on either VA reviewer's profiles, nor in keeping with prior communications just as the OP stated.

 

My guess is _another_ state's NFS ranger adopted the fee-based permitting policy, and that has perhaps been misinterpreted to apply to ALL NFS lands.

Edited by huggy_d1

Share this post


Link to post

National Forests are not listed specifically on either of the VA reviewer's profile pages.

 

You are correct. I confused National Forest with WMA since my neighborhood forest is managed cooperatively by both. However, that's in a different state.

 

Thanks for chiming in... I would certainly consider you an expert on the matter.

Share this post


Link to post

One unanswered question I have is whether these are new rules or just rules we didn't know about. I haven't been able to find the rule anywhere online but I did get my information directly from our district ranger's office who said they got it from their handbooks. I guess I need to go in and read their handbook sometime. What I got sounds close enough to the OP (especially the identical duration of the permit and the cost being exact) to make me think it's a federal rule.

 

I'm not in favor of it and don't think it makes a ton of sense, just hoping that cooler heads prevail because I think this is a great opportunity for us to lose the national forests all together and I don't want to see that happen.

 

Again, not saying $59 is a small sum but when I compare it to other annual activities I do, it's about the same.

$50.50 for hunting/fishing license (I cache more than I hunt)

Approx $60 for my boat and trailer registration

The list could go on.

I'm willing to pay the $59 (if I was given correct information and I can do multiple caches on one form) to support everyone's continued fun so we'll see how it goes. I understand that knocks a lot, if not the majority of people out of it though.

 

As an aside, I once got a firewood cutting permit from the same office for $20 and this seems way less invasive than that.

 

I would also like to know if GS has gotten any clarification on any of this. I did hear from my reviewer that they were seeking some but that's been about a week ago.

 

Again, I'm just going on a phone call and email conversation I had with our district office so that's all I know for now.

  • Love 1

Share this post


Link to post

One unanswered question I have is whether these are new rules or just rules we didn't know about. I haven't been able to find the rule anywhere online but I did get my information directly from our district ranger's office who said they got it from their handbooks.

 

This handbook is probably the one for region 8, which requires permits and fees, except for virtual caches. This region encompasses Virginia -- as well as AL, AR, FL, GA, KY, LA, MS, NC, eastern OK, PR, SC, TN, and TX.

 

National Forests in Texas link to this manual when discussing geocaching, so it seems to be used in at least some of these areas. This newspaper article lists policies that appear to be taken from this manual when discussing geocaching in North Carolina national forests, but states that permits are required only if a cache is in place over a year; fees are required if a cache is associated with a commercial event - so certainly the interpretation or implementation can vary.

 

Again it is important to know the local management policy. As knowschad pointed out, the Allegheny NF does not require fees, although caches there must be moved after a year -- the Coconino NF has a similar policy, which seems to be based on this Region 3 memo. Some have no policy at all and caches seem to be placed without restriction.

 

If there is a question about Virginia, I would want to clarify things with the NF there -- perhaps the local geocaching associations could arrange a meeting with the appropriate officials.

Edited by mulvaney

Share this post


Link to post

I have reviewed all of the pertinent National Forest web sites and while geocaching is mentioned, nothing is said about fees for hiding future caches or fines for currently placed caches. I talked to my friend again (who sent me the originally quoted email) and he said that he talked to the Jefferson National Forest Ranger's office and he was told in no uncertain terms you need to pay a $59 fee per year for EACH cache approved and placed...........period! There is no promise of controlled burn notifications as "all liabilities for the cache are assumed by the cache owner!" Further more, any previously placed cache if found and the owner identified could result in a 250 to 300 dollar fine.

I am friends with one of the District National Forest Chief Rangers in Virginia who in the past has been wonderful to deal with. I will call her tomorrow in order to shed more light on the problem. My friend who I quoted lives in a distant part of Virginia and is within a different NFS District.

Thanks for all who have and will participate in this discussion.

Share this post


Link to post

National Forests are not listed specifically on either of the VA reviewer's profile pages.

 

You are correct. I confused National Forest with WMA since my neighborhood forest is managed cooperatively by both. However, that's in a different state.

 

Thanks for chiming in... I would certainly consider you an expert on the matter.

 

Don't feel bad about confusing WMAs with National Forests. My caching bud and I did the same thing only we had to retrieve an ammo box from the top of Mt. Rogers which is WMA, but surrounded by a National Forest and a State Park. We had advanced permission for everything but the WMA! Dumb, dumb and dumb. No one's fault but ours! :blink:

Share this post


Link to post

I have reviewed all of the pertinent National Forest web sites and while geocaching is mentioned, nothing is said about fees for hiding future caches or fines for currently placed caches.

 

Fees are mentioned in the Region 8 forest service manual, which I linked to above:

 

1. This designation includes the temporary placement of personal property for the

purpose of geo-caching. 36 CFR 261.10(a) requires a special use authorization for

occupancy and use of National Forest system land. This is further supported by 36 CFR

261.10(e) that prohibits abandoning personal property on National Forest system land.

 

2. Screen proposals to locate traditional (physical) caches using 36 CFR 251.54.

Authorize traditional caches on FS 2700-5 Temporary Special Use Permit. The GPS

coordinates of the caches must be included on the permit.
Charge the regional minimum

fee.

 

This policy, which covers Virginia, authorizes a permit fee. But again, other states within the region have interpreted or limited the permit and fee requirements in significant ways.

Edited by mulvaney

Share this post


Link to post

WOW!

Where did you find the manual? Can you post the link other than the one page out of the manual? Meaning, can the whole manual be read or where it is referenced? Does the public have open access to the total manual? I overlooked your reference, but there it is in black or blue and white. They need to post it on each of the National Forest District web sites if it is really being applied.

I was sort of hoping there wasn't anything in writing and the problem was with only one FS District. It's sad but the real problem may lie with each of us who placed caches prior to the new policy. I have a friend who has hundreds of NF caches. Most of us around here have at least a few. Just think, if the fine bit is true, my friend with let's say 230 FS caches, could be libel for $69,000! Good grief Charlie Brown! :ph34r:

Share this post


Link to post

WOW!

Where did you find the manual? Can you post the link other than the one page out of the manual? Meaning, can the whole manual be read or where it is referenced? Does the public have open access to the total manual?

 

The Forest Service Manual is online, but not easily searched. Each regional field office makes specific directives for various sections of the manual, which is where region 8's geocaching policy is to be found (section 2724.44 of the regional 8 supplement to FSM 2720).

 

National forests in Texas provide this directive as part of their geocaching information, which is subject to a google search, otherwise it would be buried even deeper than it is. The policy is dated 2006, so if geocaches have been placed in the Virginia national forests without a problem, it is possible that a ranger in a district office just discovered it and decided to enforce it.

 

Again, the directive does not seem to be applied uniformly in the region. National forests in Texas cite it verbatim. North Carolina adapts it in some significant respects. I hope that it leaves your state room to maneuver towards a better solution than a permit fee.

Edited by mulvaney

Share this post


Link to post

WOW!

Where did you find the manual? Can you post the link other than the one page out of the manual? Meaning, can the whole manual be read or where it is referenced? Does the public have open access to the total manual?

 

The Forest Service Manual is online, but not easily searched. Each regional field office makes specific directives for various sections of the manual, which is where region 8's geocaching policy is to be found (section 2724.44 of the regional 8 supplement to FSM 2720).

 

National forests in Texas provide this directive as part of their geocaching information, which is subject to a google search, otherwise it would be buried even deeper than it is.

Didn't we recently dance around that Maypole? A more recent version of the manual was introduced in that discussion. In this version mention of geocaching is absent. I don't know, I think your more versed in this area than I am.

Share this post


Link to post

Didn't we recently dance around that Maypole? A more recent version of the manual was introduced in that discussion. In this version mention of geocaching is absent.

 

Yes, we danced around this with someone who believed in responsible geocaching. The section you link to is the service-wide supplement of the National Headquarters.

 

There are service wide issuances and regional field issuances. The regional directives can be more restrictive than the national directives, but as a general rule they cannot permit something that is forbidden on a service-wide basis. So in this case, Region 8 can adopt a geocaching policy that is not addressed by national headquarters on a service-wide basis.

 

As far as I know, Region 8 is the only one that addresses geocaching -- although a memo for region 3 (which I linked to above) outlined a policy that is being implemented in their forests, requiring geocaches to be moved or removed within a year.

Edited by mulvaney

Share this post


Link to post

Didn't we recently dance around that Maypole? A more recent version of the manual was introduced in that discussion. In this version mention of geocaching is absent.

 

Yes, we danced around this with someone who believed in responsible geocaching. The section you link to is the service-wide supplement of the National Headquarters.

 

There are service wide issuances and regional field issuances. The regional directives can be more restrictive than the national directives, but as a general rule they cannot permit something that is forbidden on a service-wide basis. So in this case, Region 8 can adopt a geocaching policy that is not addressed by national headquarters on a service-wide basis.

 

As far as I know, Region 8 is the only one that addresses geocaching -- although a memo for region 3 (which I linked to above) outlined a policy that is being implemented in their forests, requiring geocaches to be moved or removed within a year.

Cool, thanks!

Share this post


Link to post

I have not read the entire thread, but it is obvious what they are doing is illegal for multiple reasons. This is a bit complicated so I will try to explain it and how you should go about challenging them. I’d be happy to review any correspondence you have with the Forest Service before you send it (send me a message).

 

First you need to understand what the Forest Service Manual is. It is not a law or regulation and it is not legally enforceable. It is more or less internal guidance. When they cite something that has CFR (Code of Federal Regulations) that is a Federal Regulation and is legally enforceable. From a legal perceptive, what the CFR says is what matters.

 

The first argument I would make to challenge them is to argue the supplement that has been referenced (FSM § 2724.44) is a substantive rule and was adopted in violation of the Administrative Procedures Act. 5 USC § 553. Something like this is required to go through a rulemaking process that includes the opportunity for public comment.

 

Next argue the regulations they cited do not require a SUP (Special Use Permit). The regulations they cite are CRIMINAL regulations. The ones they cite as a basis for these requirements state:

 

The following are prohibited:

 

(a) Constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communication equipment, significant surface disturbance, or other improvement on National Forest System lands or facilities without a special-use authorization, contract, or approved operating plan when such authorization is required.

 

* * *

(e) Abandoning any personal property.

36 CFR § 261.10

 

If placing a cache does not fit sections (a) or (e) it is not prohibited and you do not need a SUP. What they are claiming in FSM § 2724.44 is geocaching fits (a) and (e). You still watch the cache and will eventually retrieve it so you are not abandoning it. More importantly unlike (a), (e) does not allow exceptions with a SUP. So if it fits (e), they could not authorize it with a SUP. Likewise, placing a geocache is not “constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communication equipment, significant surface disturbance, or other improvement .” So you do not need a SUP.

 

Even if geocaching fit (a) or (e), FSM § 2724.44 is still illegal as regulations they ignore require further inquiry to determine if a SUP is required. Federal Regulations state:

 

(a) All uses of National Forest System lands, improvements, and resources, except those authorized by the regulations governing sharing use of roads (Sec. 212.9); grazing and livestock use (part 222); the sale and disposal of timber and special forest products, such as greens, mushrooms, and medicinal plants (part 223); and minerals (part 228) are designated ``special uses.'' Before conducting a special use, individuals or entities must submit a proposal to the authorized officer and must obtain a special use authorization from the authorized officer,

UNLESS THAT REQUIREMENT IS WAIVED BY PARAGRAPHS © THROUGH (E)(3) OF THIS SECTION.

36 CFR § 251.50

 

So lets look at the paragraphs that can waive the SUP requirement. This is the first one that would waive the SUP requirement:

 

© A special use authorization is not required for noncommercial recreational activities, such as camping, picnicking, hiking, fishing, boating, hunting, and horseback riding, or for noncommercial activities involving the expression of views, such as assemblies, meetings, demonstrations, and parades, unless: [none of these would apply to placing a geocache]

36 CFR § 251.50

 

The other basis that could waive the requirement for a SUP is:

 

(e) For proposed uses other than a noncommercial group use, a special use authorization is not required if, based upon review of a proposal, the authorized officer determines that the proposed use has one or more of the following characteristics:

(1) The proposed use will have such nominal effects on National Forest System lands, resources, or programs that it is not necessary to establish terms and conditions in a special use authorization to protect National Forest System lands and resources or to avoid conflict with

National Forest System programs or operations;

36 CFR § 251.50

 

So even if all of the above did not get you out of needing a SUP, they could not require a SUP unless it was necessary to have terms and conditions to protect the forest.

 

Is this clear?

Edited by myotis

Share this post


Link to post

Why would they need to do that? So I can go retrieve my $10 ammo can before a controlled burn? That doesn't make a lot of sense. Besides, Groundspeak already keeps track of that for them. 3rd party databases like that not only cost the taxpayer unnecessary money to create and maintain, but typically are not maintained well regarding archived and missing caches.

 

I'm not saying that your information is wrong, but that if it is correct, there are some knuckleheads behind that policy.

 

I think the idea would be more to prevent families of geocachers from wandering into a controlled burn or logging operation. They could alert the CO beforehand and ensure the cache gets archived.

 

I would never pay a fee to hide a geocache, though.

Do they charge birds $59 to help prevent birders from wandering into a controlled burn or logging operation? And how is $59 (a VERY odd amount, BTW) going to prevent that anyway? I think that yellow tape is a lot cheaper and more effective.

Share this post


Link to post

Again, not saying $59 is a small sum but when I compare it to other annual activities I do, it's about the same.

$50.50 for hunting/fishing license (I cache more than I hunt)

Approx $60 for my boat and trailer registration

The list could go on.

I'm willing to pay the $59 (if I was given correct information and I can do multiple caches on one form) to support everyone's continued fun so we'll see how it goes. I understand that knocks a lot, if not the majority of people out of it though.

 

When you purchase a fishing license, you are helping to offset the State's expense of rearing and stocking fish, and all of the research and stuff involved in between, of which there is plenty. There is a huge difference.

Share this post


Link to post

I have reviewed all of the pertinent National Forest web sites and while geocaching is mentioned, nothing is said about fees for hiding future caches or fines for currently placed caches.

 

Fees are mentioned in the Region 8 forest service manual, which I linked to above:1. This designation includes the temporary placement of personal property for the purpose of geo-caching.

 

See? There you go. We are "geocaching", not "geo-caching"! :lol:

Share this post


Link to post

I have not read the entire thread, but it is obvious what they are doing is illegal for multiple reasons. This is a bit complicated so I will try to explain it and how you should go about challenging them. I'd be happy to review any correspondence you have with the Forest Service before you send it (send me a message).

 

First you need to understand what the Forest Service Manual is. It is not a law or regulation and it is not legally enforceable. It is more or less internal guidance. When they cite something that has CFR (Code of Federal Regulations) that is a Federal Regulation and is legally enforceable. From a legal perceptive, what the CFR says is what matters.

 

The first argument I would make to challenge them is to argue the supplement that has been referenced (FSM § 2724.44) is a substantive rule and was adopted in violation of the Administrative Procedures Act. 5 USC § 553. Something like this is required to go through a rulemaking process that includes the opportunity for public comment.

 

Next argue the regulations they cited do not require a SUP (Special Use Permit). The regulations they cite are CRIMINAL regulations. The ones they cite as a basis for these requirements state:

 

The following are prohibited:

 

(a) Constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communication equipment, significant surface disturbance, or other improvement on National Forest System lands or facilities without a special-use authorization, contract, or approved operating plan when such authorization is required.

 

* * *

(e) Abandoning any personal property.

36 CFR § 261.10

 

If placing a cache does not fit sections (a) or (e) it is not prohibited and you do not need a SUP. What they are claiming in FSM § 2724.44 is geocaching fits (a) and (e). You still watch the cache and will eventually retrieve it so you are not abandoning it. More importantly unlike (a), (e) does not allow exceptions with a SUP. So if it fits (e), they could not authorize it with a SUP. Likewise, placing a geocache is not "constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communication equipment, significant surface disturbance, or other improvement ." So you do not need a SUP.

 

Even if geocaching fit (a) or (e), FSM § 2724.44 is still illegal as regulations they ignore require further inquiry to determine if a SUP is required. Federal Regulations state:

 

(a) All uses of National Forest System lands, improvements, and resources, except those authorized by the regulations governing sharing use of roads (Sec. 212.9); grazing and livestock use (part 222); the sale and disposal of timber and special forest products, such as greens, mushrooms, and medicinal plants (part 223); and minerals (part 228) are designated ``special uses.'' Before conducting a special use, individuals or entities must submit a proposal to the authorized officer and must obtain a special use authorization from the authorized officer,

UNLESS THAT REQUIREMENT IS WAIVED BY PARAGRAPHS © THROUGH (E)(3) OF THIS SECTION.

36 CFR § 251.50

 

So lets look at the paragraphs that can waive the SUP requirement. This is the first one that would waive the SUP requirement:

 

© A special use authorization is not required for noncommercial recreational activities, such as camping, picnicking, hiking, fishing, boating, hunting, and horseback riding, or for noncommercial activities involving the expression of views, such as assemblies, meetings, demonstrations, and parades, unless: [none of these would apply to placing a geocache]

36 CFR § 251.50

 

The other basis that could waive the requirement for a SUP is:

 

(e) For proposed uses other than a noncommercial group use, a special use authorization is not required if, based upon review of a proposal, the authorized officer determines that the proposed use has one or more of the following characteristics:

(1) The proposed use will have such nominal effects on National Forest System lands, resources, or programs that it is not necessary to establish terms and conditions in a special use authorization to protect National Forest System lands and resources or to avoid conflict with

National Forest System programs or operations;

36 CFR § 251.50

 

So even if all of the above did not get you out of needing a SUP, they could not require a SUP unless it was necessary to have terms and conditions to protect the forest.

 

Is this clear?

A bit over my head, but you raise some very interesting points, and I'm eager to hear what others have to say about this. May I ask what your qualifications are? You do indeed sound as though you know what you're talking about.

Share this post


Link to post

I have not read the entire thread, but it is obvious what they are doing is illegal for multiple reasons. This is a bit complicated so I will try to explain it and how you should go about challenging them. I'd be happy to review any correspondence you have with the Forest Service before you send it (send me a message).

 

First you need to understand what the Forest Service Manual is. It is not a law or regulation and it is not legally enforceable. It is more or less internal guidance. When they cite something that has CFR (Code of Federal Regulations) that is a Federal Regulation and is legally enforceable. From a legal perceptive, what the CFR says is what matters.

 

The first argument I would make to challenge them is to argue the supplement that has been referenced (FSM § 2724.44) is a substantive rule and was adopted in violation of the Administrative Procedures Act. 5 USC § 553. Something like this is required to go through a rulemaking process that includes the opportunity for public comment.

 

Next argue the regulations they cited do not require a SUP (Special Use Permit). The regulations they cite are CRIMINAL regulations. The ones they cite as a basis for these requirements state:

 

The following are prohibited:

 

(a) Constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communication equipment, significant surface disturbance, or other improvement on National Forest System lands or facilities without a special-use authorization, contract, or approved operating plan when such authorization is required.

 

* * *

(e) Abandoning any personal property.

36 CFR § 261.10

 

If placing a cache does not fit sections (a) or (e) it is not prohibited and you do not need a SUP. What they are claiming in FSM § 2724.44 is geocaching fits (a) and (e). You still watch the cache and will eventually retrieve it so you are not abandoning it. More importantly unlike (a), (e) does not allow exceptions with a SUP. So if it fits (e), they could not authorize it with a SUP. Likewise, placing a geocache is not "constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communication equipment, significant surface disturbance, or other improvement ." So you do not need a SUP.

 

Even if geocaching fit (a) or (e), FSM § 2724.44 is still illegal as regulations they ignore require further inquiry to determine if a SUP is required. Federal Regulations state:

 

(a) All uses of National Forest System lands, improvements, and resources, except those authorized by the regulations governing sharing use of roads (Sec. 212.9); grazing and livestock use (part 222); the sale and disposal of timber and special forest products, such as greens, mushrooms, and medicinal plants (part 223); and minerals (part 228) are designated ``special uses.'' Before conducting a special use, individuals or entities must submit a proposal to the authorized officer and must obtain a special use authorization from the authorized officer,

UNLESS THAT REQUIREMENT IS WAIVED BY PARAGRAPHS © THROUGH (E)(3) OF THIS SECTION.

36 CFR § 251.50

 

So lets look at the paragraphs that can waive the SUP requirement. This is the first one that would waive the SUP requirement:

 

© A special use authorization is not required for noncommercial recreational activities, such as camping, picnicking, hiking, fishing, boating, hunting, and horseback riding, or for noncommercial activities involving the expression of views, such as assemblies, meetings, demonstrations, and parades, unless: [none of these would apply to placing a geocache]

36 CFR § 251.50

 

The other basis that could waive the requirement for a SUP is:

 

(e) For proposed uses other than a noncommercial group use, a special use authorization is not required if, based upon review of a proposal, the authorized officer determines that the proposed use has one or more of the following characteristics:

(1) The proposed use will have such nominal effects on National Forest System lands, resources, or programs that it is not necessary to establish terms and conditions in a special use authorization to protect National Forest System lands and resources or to avoid conflict with

National Forest System programs or operations;

36 CFR § 251.50

 

So even if all of the above did not get you out of needing a SUP, they could not require a SUP unless it was necessary to have terms and conditions to protect the forest.

 

Is this clear?

A bit over my head, but you raise some very interesting points, and I'm eager to hear what others have to say about this. May I ask what your qualifications are? You do indeed sound as though you know what you're talking about.

 

I'm not an attoreny but I've been sparring with the Forest Service for over 30 years. I've worked on many lawsuits agaisnt the FS (including one that went to the Supreme Court). I've filed hundreds of administrative appeals and have sued them multiple times without an attorny (pro se) and won each time (I got to argue in court against 5 attornies once).

Share this post


Link to post

I found this regarding caching in Allegheny National Forest. It doesn't mention any fee. I think I would like to hear this directly from either an agent of the state, or from the reviewer.

The Allegeheny is in Region 9. The guidiance is for Region 8. As far as I know, there still is no problem with geocaching in Region 9 (basically the midwest and NorthEast)

Share this post


Link to post

First you need to understand what the Forest Service Manual is. It is not a law or regulation and it is not legally enforceable. It is more or less internal guidance. When they cite something that has CFR (Code of Federal Regulations) that is a Federal Regulation and is legally enforceable. From a legal perceptive, what the CFR says is what matters.

 

The first argument I would make to challenge them is to argue the supplement that has been referenced (FSM § 2724.44) is a substantive rule and was adopted in violation of the Administrative Procedures Act. 5 USC § 553. Something like this is required to go through a rulemaking process that includes the opportunity for public comment.

 

I have have not had time to go into the federal APA, but it raised flags in my mind. I used to practice in an area of law largely governed by administrative procedures. The agency had an Operations Manual that eventually was held to be unenforceable under the state APA because it had not gone through the rulemaking process. However, the practical effect of that was minimal since specific institutions adopted the former sections of the manual as local rules. I am not sure if any substantive changes were made as a result.

 

Wild Law points out that normally, the Forest Service Manual does not create a legally enforceable “rule.” They state that it is probably better described as a “policy” under which the agency retains flexibility of action. In dealing with a forest official in Virgina or any other state within Region 8, that distinction should certainly be kept in mind.

 

Some of the specific forests in Region 8 (notably Texas) simply cite to the Manual. Others have modified it in several ways. As mentioned in a previous post, North Carolina uses the general framework of the Manual, but requires that cachers obtain prior approval for any physical cache placed on their land; that caches be moved or removed within a year unless they have a special permit -- but fees are only mentioned if a cache is placed in connection with a commercial event. I think it would be difficult to challenge these rules on substantive grounds -- and several national forests have adopted similar rules -- but it indicates that the forests have not necessarily considered the Manual to be written in stone.

 

I think it is likely that a ranger in Virginia (or Florida as another post indicated) looked at the manual and decided to follow it. As I stated earlier, I would not assume it constitutes a rule or policy for the entire forest in that area -- if the a ranger cited the Manual to me and required a fee, I would want to meet with an agency official and take it from there. And if it seemed likely to have wider implications, I would want to do more complete research about how geocaching is treated within the national forests (to present to the officials in charge) and meet with other local cachers (or caching organizations) to determine the appropriate response.

Edited by mulvaney

Share this post


Link to post

One more point. In my first post I pointed out the Administrative Procedure Act requires a formal rulemaking process for something like that. However, even if it would not meet the APA’s criteria for formal rulemaking, Forest Service Regulations have requirements before they can adopt the requirements in FSM § 2724.44. These are Federal Regulations so they are legally enforceable and the Forest Service must follow them:

 

36 CFR § 216.4 Determining the need for formal public review of proposed Manual directives.

(a) Agency officials responsible for formulating Manual directives containing applicable standards, criteria, and guidelines shall determine whether substantial public interest or controversy concerning a proposed Manual directive can be expected.

 

(B) The following shall be considered in making this determination:

 

(1) Direct written or oral communication with those known to be interested in the proposal;

 

(2) The degree to which the proposal is likely to adversely or beneficially affect the general public as well as those known to be interested in the proposal;

 

(3) The amount of change the proposal represents from current direction;

 

(4) The extent of recent news media coverage on subjects related to the proposal; and

Code of Federal Regulations / Title 36 - Parks, Forests, and Public Property / Vol. 2 / 2010-07-0142

 

(5) The amount of interest or controversy expressed on previous proposals on the same or similar subjects.

 

36 CFR § 216.5 Documentation.

The responsible Forest Service official shall document the results of the determination made pursuant to § 216.4(B), and the reasons therefor, in a concise written summary. The summary may be combined with documentation required by NEPA procedures or other applicable law or policy. The summary shall be prepared and filed at the same location as the Forest Service official responsible for developing the Manual directive.

 

So I would say there is a need to see their documentation for 36 CFR § 216.5 to see if they complied. So I would suggest one of you send a Freedom of Information Act request to the Southern Region Office which states:

 

FOIA Officer

US Forest Service Southern Region

1720 Peachtree Road NW

Atlanta, GA 30309

 

Dear FOIA Officer:

 

Pursuant to the Freedom of Information Act, I request the documentation required by 36 CFR § 216.5 for the Southern Region’s Forest Service Geocaching rules (FSM § 2724.44). If any notices were issued pursuant to 36 CFR § 216.6, please provide a copy. Please provide an electronic copy of the documents.

 

Put you name, address, phone, and email

 

You can mail it to them. However, email would be faster. I would call 404-347-7226 (Public Affairs) or 404-347-4177 (Regional Forester) and ask them if a FOIA Request can be submitted to Mailroom R8@fs.fed.us or if you should use another email address. Or you could just send it to that email and mail a copy to be safe.

 

If they find there is interest, this is what they must do:

 

§ 216.6 Notice and comment procedures for proposed Manual directives identified for formal public review.

(a) Where it is determined that substantial public interest or controversy concerning a proposed Manual directive can be expected, the following minimum requirements for notifying the public and giving opportunity to comment on the proposal apply:

 

(1) National Forest and Ranger District Proposals. The responsible official shall determine appropriate means of notifying the public. This may include, but is not limited to, legal notice in a newspaper of general circulation or press release. The public shall have a minimum of 30 calendar days to review and comment on the proposal.

 

(2) Regional, Station, and Area Proposals. The responsible official shall determine appropriate means of notifying the public. This may include, but is not limited to, notice and summary of the proposal in the Federal Register, legal notice in one or more newspapers of general circulation, or press release. The public shall have a minimum of 30 calendar days to review and comment on the proposal.

 

(3) National Proposals. The responsible official shall publish a notice and summary of the proposal in the Federal Register, followed by a minimum of 60 calendar days for public review and comment.

 

(B) Agency officials will give direct notice to Federal, State, and local governments and to the public known to be interested in the proposal. Along with the notice, the responsible official shall also provide either a complete proposal or a summary of the proposal for review.

 

© The responsible Forest Service official may conduct additional public participation activities related to the proposed Manual directive as are deemed appropriate and necessary.

 

(d) Comments received from the public shall be analyzed and considered in the formulation and preparation of the final Manual directive.

 

(e) The final Manual directive or a summary shall be sent to those who offered comments on the proposed directive and further publicized as deemed appropriate by the responsible official.

Edited by myotis

Share this post


Link to post

First you need to understand what the Forest Service Manual is. It is not a law or regulation and it is not legally enforceable. It is more or less internal guidance. When they cite something that has CFR (Code of Federal Regulations) that is a Federal Regulation and is legally enforceable. From a legal perceptive, what the CFR says is what matters.

 

The first argument I would make to challenge them is to argue the supplement that has been referenced (FSM § 2724.44) is a substantive rule and was adopted in violation of the Administrative Procedures Act. 5 USC § 553. Something like this is required to go through a rulemaking process that includes the opportunity for public comment.

 

I have have not had time to go into the federal APA, but it raised flags in my mind. I used to practice in an area of law largely governed by administrative procedures. The agency had an Operations Manual that eventually was held to be unenforceable under the state APA because it had not gone through the rulemaking process. However, the practical effect of that was minimal since specific institutions adopted the former sections of the manual as local rules. I am not sure if any substantive changes were made as a result.

 

Wild Law points out that normally, the Forest Service Manual does not create a legally enforceable “rule.” They state that it is probably better described as a “policy” under which the agency retains flexibility of action. In dealing with a forest official in Virgina or any other state within Region 8, that distinction should certainly be kept in mind.

 

Some of the specific forests in Region 8 (notably Texas) simply cite to the Manual. Others have modified it in several ways. As mentioned in a previous post, North Carolina uses the general framework of the Manual, but requires that cachers obtain prior approval for any physical cache placed on their land; that caches be moved or removed within a year unless they have a special permit -- but fees are only mentioned if a cache is placed in connection with a commercial event. I think it would be difficult to challenge these rules on substantive grounds -- and several national forests have adopted similar rules -- but it indicates that the forests have not necessarily considered the Manual to be written in stone.

 

I think it is likely that a ranger in Virginia (or Florida as another post indicated) looked at the manual and decided to follow it. As I stated earlier, I would not assume it constitutes a rule or policy for the entire forest in that area -- if the a ranger cited the Manual to me and required a fee, I would want to meet with an agency official and take it from there. And if it seemed likely to have wider implications, I would want to do more complete research about how geocaching is treated within the national forests (to present to the officials in charge) and meet with other local cachers (or caching organizations) to determine the appropriate response.

 

As far as I know, every time the Federal Courts addressed if the Forest Service Handbook and Manuel were legally enforcable they ruled it was not with one exception: Rhodes v. Johnson, 153 F.3d 785, 788 (7th Cir. 1998). I was a plaintiff in that case. In that case it was addressing a particular handbook that had gone through a formal rulemaking process. And that is the only handbook or manul that has gone through a formal rulemaking process.

Share this post


Link to post

I think it is likely that a ranger in Virginia (or Florida as another post indicated) looked at the manual and decided to follow it. As I stated earlier, I would not assume it constitutes a rule or policy for the entire forest in that area -- if the a ranger cited the Manual to me and required a fee, I would want to meet with an agency official and take it from there. And if it seemed likely to have wider implications, I would want to do more complete research about how geocaching is treated within the national forests (to present to the officials in charge) and meet with other local cachers (or caching organizations) to determine the appropriate response.

 

The Forest Service has an appeals process for things like Special Use Permits. This process could be used to challenge the legality of the requirements. In order to file an appeal, you must meet this requirement "Was offered an authorization subject to terms and conditions that the applicant finds unreasonable or impracticable." 36 CFR § 251.86 So if you want to use their formal process to address this, you need to first ask for a permit and they tell you in WRITING that you have to pay a fee. My bet is the rules will get thrown out as they clearly are illelgal and the regs are clear a SUP is not required. You could also write a letter (which they may or may not respond to) pointing out a SUP is not required and asking them to withdraw the requirements.

Share this post


Link to post

So I would say there is a need to see their documentation for 36 CFR § 216.5 to see if they complied. So I would suggest one of you send a Freedom of Information Act request to the Southern Region Office which states:

 

I probably would not start there since there is no indication that the Virginia forests (or any forests with the possible exception of Texas) have considered the Region 8 policy to be an enforceable rule. It seems to be interpreted in other areas as a policy statement or guideline subject to local modification.

 

As has been observed by the DC Circuit, "By issuing a policy statement, an agency simply lets the public know its current enforcement or adjudicatory approach. The agency retains the discretion and the authority to change its position." Therefore I would not assume the Manual is being treated as a rule or that the communication discussed in earlier posts is anything more than the interpretation of a single ranger. Instead, I would explain the problem to the supervising agency officials in the particular forest (either formally or informally) and ask that they clarify whether geocaching is subject to a special use permit and fee.

 

The next step depends on that answer. But in any case, keep us informed.

Edited by mulvaney

Share this post


Link to post

So I would say there is a need to see their documentation for 36 CFR § 216.5 to see if they complied. So I would suggest one of you send a Freedom of Information Act request to the Southern Region Office which states:

 

I probably would not start there since there is no indication that the Virginia forests (or any forests with the possible exception of Texas) have considered the Region 8 policy to be an enforceable rule. It seems to be interpreted in other areas as a policy statement or guideline subject to local modification.

 

As has been observed by the DC Circuit, "By issuing a policy statement, an agency simply lets the public know its current enforcement or adjudicatory approach. The agency retains the discretion and the authority to change its position." Therefore I would not assume the Manual is being treated as a rule or that the communication discussed in earlier posts is anything more than the interpretation of a single ranger. Instead, I would explain the problem to the supervising agency officials in the particular forest (either formally or informally) and ask that they clarify whether geocaching is subject to a special use permit and fee.

 

The next step depends on that answer. But in any case, keep us informed.

 

The local Forest Service would look upon it as directions from their boss-that is what it is. My bet is it is the reason why they are saying a permit is required. You are right the FS can change it-but only the Regional Office can change it. The local FS they are dealing with cannot change it, thier bosses expect them to follow it.

 

While there is no problem with doing what you suggest and it would probably be best to start this way, the FOIA request should still be filled ASAP. It can be done in a few minutes by cutting and pasting. There are time limits on for how long they can take to respond and with a shut down looming, who knows how long it could take to get the answer. If they are relying on it for the basis to require a SUP, you will need to get the answer to the FOIA to challenge the fee. Filing the FOIA is not challenging the rules, it is getting the information you need in case you have to challnge the rule.

Edited by myotis

Share this post


Link to post

Further more, any previously placed cache if found and the owner identified could result in a 250 to 300 dollar fine.

 

As I mentioned, the regulations they erronioulsy claim prohibit geocaching without a SUP are CRIMINAL regulations. So he is right, Forest Service Law Enforcment Officers could issue citations for placing a geocache without a SUP and you could end up in front of a Federal judge. You could argue the points I made to the judge, but the best course is to challenge the regional policy. Only the regional or national office can change the regional policy. So I think there is a need for a formal request to the Regional Forester to change the policy or an appeal challening it. If not anyone who has placed a cache in a Southern Region NF without a SUP is risking ending up before a Federal judge.

Share this post


Link to post

Well...

 

I was wondering where to go for a caching holiday this summer.

 

It won't be Virginia. If they don't want geo-tourism, fine.

Share this post


Link to post

Well...

 

I was wondering where to go for a caching holiday this summer.

 

It won't be Virginia. If they don't want geo-tourism, fine.

Don't blame the State (errr... Commonwealth) of Virginia for the misguided actions of some Federal bureaucrat who has jurisdiction over some real estate that happens to be located there. This discussion is about the National Forest Service. Virginia has very little to do with it.

Share this post


Link to post

Its even more narrow than the "Forest Service." Its about the Southern Region of the Forest Service.

Share this post


Link to post

The FS can change it-but only the Regional Office can change it. The local FS they are dealing with cannot change it, thier bosses expect them to follow it.

 

If not anyone who has placed a cache in a Southern Region NF without a SUP is risking ending up before a Federal judge.

 

Not necessarily. Without considering whether legal action might be brought against a cache owner, placing a cache in North Carolina would be fine as long as it met the rules applicable to that state's national forests, which differs from the FSM.

 

The rules seem to vary from state to state. As an example, according to Groundspeak sources, Alabama national forests generally allows caching without express permission or permit. Tennessee generally follows the section 8 guidelines, but "the land manager may choose to issue permission for the cache placement on their authority" without requiring a special use permit.

 

Because of this, if I lived in Virginia (or Florida in the case with the other poster), I would still start by clarifying whether a use permit and fee is being required, if the land manager has discretion to approve a cache without a SUP and a fee, and take it from there. The matter might be easily resolved. Indeed, the email cited in the original posts suggests that a cache might be approved without a SUP - "If after the pre-screening of your application . . ."

 

These differences would seem to be in keeping with the 2004 regulations, which reportedly leave a number of matters (including recreation) to be determined on a forest-to-forest basis, informed about local conditions.

 

In any event, before addressing it on either a state or regional level, I would want to be very clear about what is going on in my state and throughout the region. I would want to know how the policy is being applied or adapted in particular areas, if there are considerations that might affect other areas in the Region -- if Alabama takes a more open approach, is that going to change if I force the issue with the regional office? Certainly, there are caches that have been placed within region 8 after the 2006 policy was formulated - how is the manual being applied in these areas? Has a special use permit and a fee ever been actually required within a Region 8 national forest?

 

I don't think I would take it on myself to challenge a regional policy without involving the various caching organizations in the affected areas. So before filing freedom of information requests or appealing to the regional office, I would begin from the ground up and take it one step at a time.

Edited by mulvaney

Share this post


Link to post

Well...

 

I was wondering where to go for a caching holiday this summer.

 

It won't be Virginia. If they don't want geo-tourism, fine.

Don't blame the State (errr... Commonwealth) of Virginia for the misguided actions of some Federal bureaucrat who has jurisdiction over some real estate that happens to be located there. This discussion is about the National Forest Service. Virginia has very little to do with it.

 

I suppose I couldn't be fined for finding any caches there...or could I?

If I replace a cache the way I found it, am I now a co-conspirator and subject to the same penalties as the owner??

Share this post


Link to post

Let's be clear, they are not talking about taking legal action against the cahce placer, what Konnarock Kid & Marge indicated he was told they were going to do would be Law Enforcement Officers "LEOs" issuing criminal citations for violiting these criminal regulations:

 

The following are prohibited:

 

(a) Constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communication equipment, significant surface disturbance, or other improvement on National Forest System lands or facilities without a special-use authorization, contract, or approved operating plan when such authorization is required.

 

* * *

(e) Abandoning any personal property.

36 CFR § 261.10

 

While it is clear these regulations are not being violated, it is the policy of the Southern Region that placing a geocache without a SUP is a violation of these CRIMINAL prohibitions. While I think the citation could be beat in court, anyone who has a cache on a Southern Region National Forest could get a citation. If I had a cache on any NF is the Southern Region, I would be very concerned with a region policy that this is a criminal act. I do not think this is a close call, it needs to be challenged and I would give a challenge a 99% chance of success. But I agree with you, it would be best for local caching groups to send a letter to the Regional Forester (which I would be happy to draft). The other way to challenge it is for a cacher to get it in writing that they need a SUP and have to pay a fee so this can be appealed. It would be preferable to get the letter from the Supervisor's Officer as the first level appeal would be decided by the Regional Office (which is the only line officer who can fix the problem). If someone wants to do this, I would draft your appeal (which I would give a 99% chance of success) for you.

 

If you are already confused, don't read this: It is a bit more complicated. Decisions on managing the National Forests are made by Line Officers: Chief, Regional Foresters, Forest Supervisors, and District Rangers. The FS Manuel direction is for this chain of command. Law Enforcement is not under this chain of command-they are kept separate to avoid corruption. The guidance on geocaching is for the land managers, not the LEOs. So the LEOs have no obligation to follow this guidance but there is a good chance they would.

Share this post


Link to post

Well...

 

I was wondering where to go for a caching holiday this summer.

 

It won't be Virginia. If they don't want geo-tourism, fine.

Don't blame the State (errr... Commonwealth) of Virginia for the misguided actions of some Federal bureaucrat who has jurisdiction over some real estate that happens to be located there. This discussion is about the National Forest Service. Virginia has very little to do with it.

 

I suppose I couldn't be fined for finding any caches there...or could I?

If I replace a cache the way I found it, am I now a co-conspirator and subject to the same penalties as the owner??

 

That is correct. They are not saying there is a problem with finding a cache, they are just saying it is a criminal violation of Federal regulaitons to place a cache without a SUP.

Share this post


Link to post

I have not read the entire thread, but it is obvious what they are doing is illegal for multiple reasons. This is a bit complicated so I will try to explain it and how you should go about challenging them. I'd be happy to review any correspondence you have with the Forest Service before you send it (send me a message).

 

First you need to understand what the Forest Service Manual is. It is not a law or regulation and it is not legally enforceable. It is more or less internal guidance. When they cite something that has CFR (Code of Federal Regulations) that is a Federal Regulation and is legally enforceable. From a legal perceptive, what the CFR says is what matters.

 

The first argument I would make to challenge them is to argue the supplement that has been referenced (FSM § 2724.44) is a substantive rule and was adopted in violation of the Administrative Procedures Act. 5 USC § 553. Something like this is required to go through a rulemaking process that includes the opportunity for public comment.

 

Next argue the regulations they cited do not require a SUP (Special Use Permit). The regulations they cite are CRIMINAL regulations. The ones they cite as a basis for these requirements state:

 

The following are prohibited:

 

(a) Constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communication equipment, significant surface disturbance, or other improvement on National Forest System lands or facilities without a special-use authorization, contract, or approved operating plan when such authorization is required.

 

* * *

(e) Abandoning any personal property.

36 CFR § 261.10

 

If placing a cache does not fit sections (a) or (e) it is not prohibited and you do not need a SUP. What they are claiming in FSM § 2724.44 is geocaching fits (a) and (e). You still watch the cache and will eventually retrieve it so you are not abandoning it. More importantly unlike (a), (e) does not allow exceptions with a SUP. So if it fits (e), they could not authorize it with a SUP. Likewise, placing a geocache is not "constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communication equipment, significant surface disturbance, or other improvement ." So you do not need a SUP.

 

Even if geocaching fit (a) or (e), FSM § 2724.44 is still illegal as regulations they ignore require further inquiry to determine if a SUP is required. Federal Regulations state:

 

(a) All uses of National Forest System lands, improvements, and resources, except those authorized by the regulations governing sharing use of roads (Sec. 212.9); grazing and livestock use (part 222); the sale and disposal of timber and special forest products, such as greens, mushrooms, and medicinal plants (part 223); and minerals (part 228) are designated ``special uses.'' Before conducting a special use, individuals or entities must submit a proposal to the authorized officer and must obtain a special use authorization from the authorized officer,

UNLESS THAT REQUIREMENT IS WAIVED BY PARAGRAPHS © THROUGH (E)(3) OF THIS SECTION.

36 CFR § 251.50

 

So lets look at the paragraphs that can waive the SUP requirement. This is the first one that would waive the SUP requirement:

 

© A special use authorization is not required for noncommercial recreational activities, such as camping, picnicking, hiking, fishing, boating, hunting, and horseback riding, or for noncommercial activities involving the expression of views, such as assemblies, meetings, demonstrations, and parades, unless: [none of these would apply to placing a geocache]

36 CFR § 251.50

 

The other basis that could waive the requirement for a SUP is:

 

(e) For proposed uses other than a noncommercial group use, a special use authorization is not required if, based upon review of a proposal, the authorized officer determines that the proposed use has one or more of the following characteristics:

(1) The proposed use will have such nominal effects on National Forest System lands, resources, or programs that it is not necessary to establish terms and conditions in a special use authorization to protect National Forest System lands and resources or to avoid conflict with

National Forest System programs or operations;

36 CFR § 251.50

 

So even if all of the above did not get you out of needing a SUP, they could not require a SUP unless it was necessary to have terms and conditions to protect the forest.

 

Is this clear?

A bit over my head, but you raise some very interesting points, and I'm eager to hear what others have to say about this. May I ask what your qualifications are? You do indeed sound as though you know what you're talking about.

 

I'm not an attoreny but I've been sparring with the Forest Service for over 30 years. I've worked on many lawsuits agaisnt the FS (including one that went to the Supreme Court). I've filed hundreds of administrative appeals and have sued them multiple times without an attorny (pro se) and won each time (I got to argue in court against 5 attornies once).

Myotis, many, many thanks for your input. I, like knowschad, are most impressed with your work. Those of us who are directly impacted are discussing the situation. If I may summarize your posts, the statements that I quoted of one District Ranger's Office (District 8, Jefferson National Forest, Virginia) do not have the backing of law and cannot be legally enforced. Am I correct?

Thanks.

Share this post


Link to post
If I may summarize your posts, the statements that I quoted of one District Ranger's Office (District 8, Jefferson National Forest, Virginia) do not have the backing of law and cannot be legally enforced. Am I correct?

 

If I may jump back into this, it has been held that the Forest Service Manual is not "legally enforceable" under administrative laws. Western Radio Services Co., Inc. v. Espy, 79 F.3d 896 (9th Cir.1996). The Forest Service itself has sometimes taken the position that the policies in the manual are discretionary and cannot be enforced through citizen lawsuits. As some organizations have argued, there are some wrinkles to this under the 2004 regulations, but determining whether a regional policy is enforceable is only a starting point and does not necessarily lead to substantive change.

 

As I cited in a previous post, the geocaching policy in the Region 8 Manual is not being uniformly adopted throughout its jurisdiction. With the possible exception of Texas, states within this region are not simply adopting it as a local rule and the approaches vary a great deal from state to state. Arguably, the forest service itself does not appear to be treating it as an inflexible or enforceable rule.

 

The statement cited in your original post seems closest to what appears to be happening in Tennessee (where caches continue to be placed in the national forests) and does not necessarily indicate that Virginia is applying the manual without discretion. As you quoted, it states that a special use permit would only be required if prescreening indicates that is necessary. Have you been told anything different? Has the local forest service office actually required a special use permit?

 

If you are being told that under the manual there is no discretion to place a geocache without a special use permit, then it might be important to discuss whether the manual is "enforceable" and to point out that states within the region have adapted it in a number of different ways. Indeed, the actual regulations of the Forest Service (which are enforceable) contemplate local discretion and the ability to waive special use permits.

 

If you are being told that after "prescreening" a cache requires a special use permit and a fee then it would be important to discuss why geocaching does not have the type of impact that would require such a permit (36 CFR § 251.50).

 

While it is somewhat off point, I also note that under the Obama Administration's 2011 Executive Order an agency's regulations should "reduce burdens and maintain flexibility and freedom of choice for the public." If that is the goal of a federal agency, then certainly caching should be considered with the same degree flexibility and freedom that is afforded other public use.

 

In thinking about this issue again, I noticed that the websites for the Washington and Jefferson National Forests (as well as the Cherokee Forest in Tennessee and the Texas Forests) do not have any listed policy concerning geocaching - the geocaching section of the sites are blank and the old link in Texas to the Manual is no longer on the site. That is probably because the web sites appear to be in transition, but perhaps it indicates that the local policy is still in flux -- but even a blank section seems to contemplate geocaching as an activity within the Virginia forests. Given that the online geocaching section for Virginia is blank, I would contact the Supervisor's Office and ask them what the policy is throughout the forest. It is important to know what policy is currently being applied and how it is actually being put into practice.

Edited by mulvaney

Share this post


Link to post

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...
Sign in to follow this  
Followers 4

×
×
  • Create New...