read here to learn how owners of cabins located on national forest lands can fight for their right...

• Read here to learn how owners of cabins located on National Forest lands can fight for their right to fair cabin user fees!

Keeping Your Cabin by Preserving Your Rights

2Save Your Cabin By Protecting Your Rights!

What could be nicer than a cabin in the woods . . .

Save Your Cabin By Protecting Your Rights! 3

Nowadays, cabin ownership may seem like a

luxury, akin to owning a beach house or a

summer retreat. The tradition of family cabins

maintained on National Forest lands, however,

was developed as a distinctly egalitarian system

that harkens back to a time when electricity was

scarce and running water an extravagance—

before even the creation of the Federal Forest

System in 1891.

Affordable fees were a large part of the reason

why average families have been able to pass

these cabins down from generation to

generation.

This system is beneficial not only for those who

enjoy using the cabins, but also for anyone who

stands to benefit from the cabin users’ role as land

stewards, protecting and maintaining the natural

beauty of our federal forests.

This tradition of cabin ownership is now

threatened by the imposition of a system that

raises families’ cabin user fees to prohibitively high

rates . . .


Meet Jean Kelley…Jean has a cabin on Pike Bay in the Chippewa National Forest that serves as her cherished retreat from the hustle and bustle of life in the city. The cabin was passed down to her from her grandparents, who built the cabin in 1930. For sixty years, Jean has been visiting her cabin, sometimes with family members, friends, and sometimes alone. Jean’s cabin has been an integral part of her life and the life of her family and she cannot imagine a world without it.

History of Cabin Use


The federal forests were first opened to the public for recreational use following the enactment of the Organic Administration Act of 1897. Permits for cabins located on federal forest land were first issued following the enactment of the Occupancy Permits Act of 1914, which authorized the Forest Service to issue permits at ‘reasonable rates.’

In 1969, a system was implemented in which cabin owners were required to apply for 20-year permits, the yearly fees of which were determined through appraisals of the cabin lot’s value. The user fee was established as 5% of the appraised fair market value.


In 1997, the GAO published findings alleging that the undervaluation of lots on federal forest land was costing the federal government tens of millions of dollars to which it was rightfully entitled in the form of cabin user permit fees. As a result of a series of new valuations conducted in the late Nineties, many cabin owners’ fees increased dramatically…

In 2000, Congress enacted the Cabin User Fee Fairness Act (CUFFA) “…to develop and implement a more consistent procedure for determining cabin user fees, taking into consideration the limitations of an authorization and other relevant market factors.”

History Cont’d.

caitlin.guilford

split this up into several different slides

7

How does the Cabin User Program work now for someone like Jean…

Save Your Cabin By Protecting Your Rights!

• Jean must get a permit in order to enjoy the use of her cabin in the Chippewa National Forest

• The conditions of that permit involve the yearly payment of a permit fee

• In order to assess that fee, the Forest Service must conduct an appraisal of the fair market value for the tract of land on which the cabin sits, as it did for Jean’s lot in 2007

• The permit fee remains as 5% of the appraised fair market value


A way to get people into nature

From its inception, the cabin program has been a wonderful way of getting people back into nature. In the early twentieth century, it would take people days to reach these refuges. Nowadays, for people like Jean, it’s a few-hour drive to escape the hectic bustle of their jobs in the city and relax with a kayak, the lake, and the call of the loon…


A way to get people into nature

Jean enjoys the solace of retreating to her cabin on Cass Lake, but it also serves as a much-loved family gathering spot, where relatives and friends, young and old, stop in for a few days, a week, to visit with each other and commune with nature. It is an access point to environments and experiences that many visitors would not otherwise have the opportunity to enjoy.


A Rude Shock…

For over eighty years, Jean and her family have paid their yearly fee to the Forest Service. In the winter of 2008, Jean received a shock in the form of a notice from the Forest Service informing her of the newly-assessed permit fee for her cabin. The amount had increased 300%. Distraught at the prospect of losing such an important part of her life, Jean started to explore the options available to challenge her prohibitively high fee.


Permit Fee Disparities: pre- and post-CUFFA

• This chart demonstrates the disparity in permit fees assessed for a group of cabin owners in Michigan’s Upper Peninsula in 2010 (based upon appraisals conducted prior to CUFFA) and 2011 (when the cabin users’ permits expired and fees were assessed using CUFFA)

• The lowest disparity was a 585.6% increase; the highest was over 1600%

Murray B

ay #3

Murray B

ay #4

Murray B

ay #

7

West

Shore

North Lig

ht

Trout B

ay$0.00

$2,000.00

$4,000.00

$6,000.00

$8,000.00

$10,000.00

$12,000.00

$14,000.00

$16,000.00

Permit fee assessed for 2011Most recent permit fee 2010


Exploring Options…

Jean talked to senators, activists, local representatives—anyone she thought might help address her unfair fee hike. She met other cabin owners who had fee increases as bad or worse than hers, and who were similarly distraught. She quickly realized that Congressional assistance would not be forthcoming—in this economic climate, the concerns of such a small constituency tend to fall on deaf ears.


Fighting Back

Given the difficulties and uncertainties associated with lobbying, Jean decided to focus her efforts on challenging the fee directly through administrative appeal. To that end, she found Eckland & Blando, a Minneapolis law firm that specializes in cases challenging government action. Consensus built among her fellow cabin owners on Cass Lake, and word spread to cabins on Lake Winnibigoshish.


What was the problem…At this point, Jean and her fellow cabin owners were at a loss as to the reason why their cabin fees had increased so dramatically—they just knew that something must be wrong. Jean had a good relationship with the Forest Service up until that point—she had even taught the rangers how to perform CPR and assisted in reforestation efforts. The attorneys at Eckland & Blando advised that the problem was with the Cabin User Fee Fairness Act (CUFFA) and the Forest Service’s incorrect interpretation of CUFFA…


Cabin User Fee Fairness ActProblems with the cabin fee system arose in the Nineties when the Forest Service began updating appraisals for expiring permits—and the fees skyrocketed. Ostensibly in order to correct the fractured and unfair appraisal system, Congress enacted CUFFA in the year 2000. The stated purpose of the legislation was “…to develop and implement a more consistent procedure for determining cabin user fees, taking into consideration the limitations of an authorization and other relevant market factors.” 16 U.S.C. § 6202.


Problems with CUFFA

CUFFA started out as a way to make things more fair, easier for the Forest Service and cabin users

alike. As with so many well-intentioned legislative efforts, changes were made, vague language,

susceptible to multiple meanings, was inserted in the course of the legislative process. In the end, a poorly-worded statute remained—and became the

law of the land.


§ 6206: “Cabin User Fee”

The Secretary shall establish the cabin user fee as the amount that is equal to 5 percent of the MARKET VALUE OF THE LOT, as determined in accordance with section 6205, reflecting an adjustment to the typical MARKET RATE of return due to RESTRICTIONS imposed by the permit, including—

(1) the limited term of the authorization;

(2) the absence of significant property rights normally attached to fee simple ownership; and

(3) the public right of access to, and use of, any open portion of the lot on which the cabin or other enclosed improvements are not located.


CUFFA: Differing Interpretations

The Forest Service argues that the “fair market value” of the lot is to be appraised under CUFFA without taking into account the restrictions that the Government imposes on the use of the lot. The Forest Service asserts that the 5% formula (that is, 5% of the appraised value) used in CUFFA is, by itself, intended to incorporate the restrictions into account in the fee calculation. But the old system (the formula with 5% of appraised value was started in 1969) used that very same formula and CUFFA was intended TO CHANGE the appraisal process to make fees more affordable. How was this change accomplished, then, by passing CUFFA if all CUFFA is interpreted to have said is to re-establish THE SAME 5% formula? The answer must be that CUFFA required the appraisals to take restrictions into account BEFORE the 5% calculation is applied, otherwise CUFFA changed nothing (and if you read the relevant provisions of CUFFA correctly, with correct grammatical interpretation, this is exactly what CUFFA actually says).


Problems with the Appraisals

The main reason that fees have skyrocketed for cabin users in forests across the country is that the Forest Service will not accept appraisals that take into account the use restrictions inherent to the cabin permit scheme. As such, the ‘fair market value’ assessed for the properties ends up being a number grossly in excess of the actual value derived from use of the cabins.

The Restrictions

• Limited term of use• No right to exclude others from property• Inability to make profit off of the land• Inability to occupy the cabin year-round• Inability to improve or otherwise alter land without Forest

Service approval• No guarantee of permit renewal• Threat of permit termination due to ‘changed conditions’• Responsibility to remove cabin once permit expires• Inability to transfer without Forest Service approval


Limited Use Term• The term of use of each permit is only twenty (20)

years.• This factor alone reduces the fair market value of

the lot by as much as seventy (70) percent.• User fees that represent 100% of the unrestricted

fair market value of the lot every 20 (5% x 20 = 100%) years are manifestly unfair when you don’t enjoy 100% use during the 20 years and own nothing after the 20 years


CUFFA specifically directs the Agency to exercise its authority “in such a manner as not to preclude the general public from full

enjoyment of the natural, scenic, recreational and other aspects of the natural forests.”


No Right to Exclude

…Which means that, under CUFFA, if someone sets up camp on your front lawn, you have no right to send them packing!


Opportunity for Profit

You also have no right to generate revenue in any way through your cabin ownership without prior approval of the Forest Service


No right to year-round use…


No right to improve (without the Forest Service’s approval)

Can’t build a dock….

….Or a shed


Forest Service can kick you out based on ‘changed conditions’…and no guarantee of permit renewal


If your permit is terminated, then you are responsible for moving the cabin off of the property


No right to transfer ownership (without consent of Forest Service)


Fighting BackAfter extensive preparation and consultation between the attorneys at Eckland & Blando and the cabin owners, the group filed their appeals in February 2010. Although they did not prevail in their initial appeal, this group of cabin owners now have the right to file a case in federal court challenging the Forest Service’s permit fee decisions. This ‘failure’ was expected, as the Forest Service is an administrative agency that essentially judges challenges to its own actions. But an administrative appeal is a necessary step before federal court, where the legal argument will be evaluated and decided by a less biased, more experienced adjudicative body.


Two Avenues to AppealAppeal to Agency: Challenge Application of CUFFA• Appeal rights are triggered through a

process administered by the Forest Service once a permit fee is actually assessed

• Permit holders must exercise their appeal rights within 45 days of the due date for the first payment using the fee assessed under CUFFA

• Appeal based on legal challenge of CUFFA will likely be rejected second level of appeal within agency administrative remedies exhausted

Get a Second Appraisal of Your Cabin Lot’s Fair Market Value

• This avenue involves challenging the underlying facts upon which the appraisal was based

• First step: notify Forest Service of intent to obtain second appraisal within 60 days of new fee notice

• Second Step: obtain appraisal within one year from appraiser whose qualifications are approved by Forest Service


Timelines for Two Avenues to Appeal

Appeal to Agency: Challenge Application of CUFFA

Receive invoice for CUFFA-based annual permit fee

45 File notice of appeal with Forest Supervisor w/in 45 days

Also inform Deciding Officer of notice of appeal

75 30 days to respond

90 Appeal to Regional Forester within 15 days after decision on first appeal

120 30 days to respond

Decision of Regional Forester on second-level appeal is final.

Get a Second Appraisal of Your Cabin Lot’s Fair Market Value

DAY

0 Receipt of Notice of Determination (NOD) of new base cabin user fee

60 Notify FS of intent to obtain a second appraisal (“Not later than 60 days”)

364 Obtain a second appraisal” (“Within 1 year following receipt” of NOD)

Submit “request for reconsideration of the base cabin user fee, based upon results of the second appraisal (“Not later than 60 days after obtaining second appraisal”)

484 FS shall review and notify cabin owner of the new base cabin user fee (“Not later than 60 days after request for reconsideration”)

529 File notice of appeal with Forest Supervisor w/in 45 days

Also inform Deciding Officer of notice of appeal 559 30 days to respond 574 Appeal to Regional Forester within 15 days after

decision on first appeal

30 days to respond

Decision of Regional Forester on second-level appeal is final.

33

Problems with Second Appraisals

Save Your Cabin By Protecting Your Rights!

Some of the second appraisals obtained by cabin users were rejected by the Forest Service. Below are the disparities between second appraisal fair market value and fair market value as assessed by the Forest Service’s appraiser

1 2 3 4 5 6$0

$50,000

$100,000

$150,000

$200,000

$250,000

$300,000

$350,000

$400,000

Zachritz AppraisalSteigerwaldt Appraisal


Problems with Second Appraisals

Although the second appraisers may assess the lot’s value at a much more reasonable amount than the Forest Service appraisers, they still must conduct their appraisal consistent with the Forest Service’s interpretation of CUFFA—i.e., not taking into account the use restrictions…which means that any reduction in the permit fee—in the event that the Forest Service actually accepts the second appraisal—will be minimal, as compared with the reduction if CUFFA were applied correctly.


Why Imminent Action is Necessary

Rather than going through the administrative appeal process, some cabin owners may be waiting for legislation to pass; others might believe that a successful outcome in a federal court case initiated by others would mean automatic lowering of permit fees for their own cabins. The former may be waiting in vain; the latter likely may be incorrect. In the meantime, as their right to appeal expires, owners may well forfeit their right to join a federal court case that could result in the user fee reduction to which they are entitled—at least for another ten years until the next appraisal…


Filing now…or waiting 20 years

Filing appeal with Forest Service

Jean paid a flat fee for her appeal to the Forest Service, some of which was returned as more cabin owners joined. When enough cabin owners have exhausted their administrative remedies, she will join a case filed in federal court challenging the interpretation of CUFFA, and her exorbitant permit fee.

Doing NothingIf Jean were to do nothing, she would have to pay $6,300 to the Forest Service each year. If she had not gone through the administrative process, she likely would have lost the right to challenge her permit fee for another twenty years. Over the course of twenty years, she would pay $126,000. For those who cannot afford to pay this permit fee, simply abandoning their cabin is not an option—they must either sell it to a Forest Service-approved buyer, or pay for the structure to be removed.


So, what will you do?

Lose your cabin….

……Or fight back!

To Learn More


Jeff Ecklandor Mark Blando

Business: (612) 236-0160

To learn more about Jean’s story or to

find out how you might benefit from

challenging unfair cabin user fees,

please contact . . .


http://www.ecklandblando.com/

http://www.ecklandblando.com/

read here to learn how owners of cabins located on national forest lands can fight for their right...

Documents

cabin program

jeans cabin

cabin owners fees

cabin user program

tradition of cabin ownership

families cabin user

fair cabin user fees

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