16 U.S.C. § 497b — Ski area permits

Page 944 TITLE 16—CONSERVATION § 497a poses whenever such use is related to or con- sistent with other uses on the national forests; (d) to permit any State or political subdivision thereof, or any public or nonprofit agency, to use and occupy suitable areas of land within the national forests not exceeding eighty acres and for periods not exceeding thirty years, for the purpose of constructing or maintaining any buildings, structures, or facilities necessary or desirable for education or for any public use or in connection with any public activity. The au- thority provided by this section shall be exer- cised in such manner as not to preclude the gen- eral public from full enjoyment of the natural, scenic, recreational, and other aspects of the na- tional forests. (Mar. 4, 1915, ch. 144, 38 Stat. 1101; July 28, 1956, ch. 771, 70 Stat. 708.) Editorial Notes AMENDMENTS 1956—Act July 28, 1956, increased maximum area of land for each purpose for which permits may be granted from not more than 5 acres to not more than 80 acres, and authorized permits for facilities for public safety, for buildings, structures, and facilities for industrial or commercial purposes whenever such purposes are re- lated to or consistent with other use of the national forests, and for facilities to be used by public or non- profit agencies for education or public use or in connec- tion with any public activity. Statutory Notes and Related Subsidiaries ENHANCING FOREST SERVICE ADMINISTRATION OF RIGHTS-OF-WAY AND LAND USES Pub. L. 106–113, div. B, § 1000(a)(3) [title III, § 331], Nov. 29, 1999, 113 Stat. 1535, 1501A–196, as amended, formerly set out as a note under this section, was transferred to section 497e of this title. § 497a. Occupancy and use under permit of lands in Alaska for various purposes; period of per- mit; size of allotment; prohibitions; termi- nation The Secretary of Agriculture, in conformity with regulations prescribed by him, may permit the use and occupancy of national-forest lands in Alaska for purposes of residence, recreation, public convenience, education, industry, agri- culture, and commerce, not incompatible with the best use and management of the national forests, for such periods as may be warranted but not exceeding thirty years and of such areas as may be necessary but not exceeding eighty acres, and after such permits have been issued and so long as they continue in full force and ef- fect the lands therein described shall not be sub- ject to location, entry, or appropriation, under the public land laws or mining laws, or to dis- position under the mineral leasing laws: Pro- vided, That nothing contained in this section shall prevent the said Secretary from canceling, revoking, or otherwise terminating a permit so issued upon proof of a breach of its terms and conditions or for other just cause. (Mar. 30, 1948, ch. 162, 62 Stat. 100.) Editorial Notes CODIFICATION Section was formerly classified to section 341 of Title 48, Territories and Insular Possessions. § 497b. Ski area permits (a) Law applicable to permits The provisions of the Act of March 4, 1915 (16 U.S.C. 497) notwithstanding, the term and acre- age of permits for the operation of ski areas and associated facilities on National Forest System lands shall on and after October 22, 1986, be gov- erned by this section and other applicable law. (b) Authority The Secretary of Agriculture (hereinafter re- ferred to as ‘‘the Secretary’’) is authorized to issue permits (hereinafter referred to as ‘‘ski area permits’’) for the use and occupancy of suitable lands within the National Forest Sys- tem for skiing and other snow sports and rec- reational uses authorized by this section. A ski area permit— (1) may be issued for a term not to exceed 40 years; (2) shall ordinarily be issued for a term of 40 years (unless the Secretary determines that the facilities or operations are of a scale or na- ture as are not likely to require long-term fi- nancing or operation), or that there are public policy reasons specific to a particular permit for a shorter term; (3) shall encompass such acreage as the Sec- retary determines sufficient and appropriate to accommodate the permittee’s needs for ski operations and appropriate ancillary facilities; (4) may be renewed at the discretion of the Secretary; (5) may be cancelled by the Secretary in whole or in part for any violation of the per- mit terms or conditions, for nonpayment of permit fees, or upon the determination by the Secretary in his planning for the uses of the national forests that the permitted area is needed for higher public purposes; (6) may be modified from time to time by the Secretary to accommodate changes in plans or operations in accordance with the provisions of applicable law; (7) shall be subject to such reasonable terms and conditions as the Secretary deems appro- priate; and (8) shall be subject to a permit fee based on fair market value in accordance with applica- ble law. (c) Other recreational uses (1) Authority of Secretary Subject to the terms of a ski area permit issued pursuant to subsection (b), the Sec- retary may authorize a ski area permittee to provide such other seasonal or year-round nat- ural resource-based recreational activities and associated facilities (in addition to skiing and other snow-sports) on National Forest System land subject to a ski area permit as the Sec- retary determines to be appropriate. (2) Requirements Each activity and facility authorized by the Secretary under paragraph (1) shall— (A) encourage outdoor recreation and en- joyment of nature; (B) to the extent practicable— (i) harmonize with the natural environ- ment of the National Forest System land Page 945 TITLE 16—CONSERVATION § 497b on which the activity or facility is located; and (ii) be located within the developed por- tions of the ski area; (C) be subject to such terms and conditions as the Secretary determines to be appro- priate; and (D) be authorized in accordance with— (i) the applicable land and resource man- agement plan; and (ii) applicable laws (including regula- tions). (3) Inclusions Activities and facilities that may, in appro- priate circumstances, be authorized under paragraph (1) include— (A) zip lines; (B) mountain bike terrain parks and trails; (C) frisbee golf courses; and (D) ropes courses. (4) Exclusions Activities and facilities that are prohibited under paragraph (1) include— (A) tennis courts; (B) water slides and water parks; (C) swimming pools; (D) golf courses; and (E) amusement parks. (5) Limitation The Secretary may not authorize any activ- ity or facility under paragraph (1) if the Sec- retary determines that the authorization of the activity or facility would result in the pri- mary recreational purpose of the ski area per- mit to be a purpose other than skiing and other snow-sports. (6) Boundary determination In determining the acreage encompassed by a ski area permit under subsection (b)(3), the Secretary shall not consider the acreage nec- essary for activities and facilities authorized under paragraph (1). (7) Effect on existing authorized activities and facilities Nothing in this subsection affects any activ- ity or facility authorized by a ski area permit in effect on November 7, 2011, during the term of the permit. (d) Regulations Not later than 2 years after November 7, 2011, the Secretary shall promulgate regulations to implement this section. (e) Construction with Secretary’s duties under other laws Nothing in this section shall be deemed to amend, modify or otherwise affect the Sec- retary’s duties under the National Environ- mental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and the Forest and Rangeland Renewable Re- sources Planning Act of 1974 (16 U.S.C. 1600 et seq.), including his duties to involve the public in his decisionmaking and planning for the na- tional forests. (Pub. L. 99–522, § 3, Oct. 22, 1986, 100 Stat. 3000; Pub. L. 112–46, § 3, Nov. 7, 2011, 125 Stat. 538.) Editorial Notes REFERENCES IN TEXT Act of March 4, 1915 (16 U.S.C. 497), referred to in sub- sec. (a), is act Mar. 4, 1915, ch. 144, 38 Stat. 1086. For complete classification of this Act to the Code, see Ta- bles. This section, referred to in subsecs. (a), (b), and (e), was in the original ‘‘this Act’’, meaning Pub. L. 99–522, Oct. 22, 1986, 100 Stat. 3000, known as the National For- est Ski Area Permit Act of 1986, which enacted this sec- tion and notes set out under this section. For complete classification of this Act to the Code, see Short Title note below and Tables. The National Environmental Policy Act of 1969, re- ferred to in subsec. (e), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Wel- fare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. The Forest and Rangeland Renewable Resources Planning Act of 1974, referred to in subsec. (e), is Pub. L. 93–378, Aug. 17, 1974, 88 Stat. 476, which is classified generally to subchapter I (§ 1600 et seq.) of chapter 36 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1600 of this title and Tables. AMENDMENTS 2011—Subsec. (a). Pub. L. 112–46, § 3(1), substituted ‘‘ski areas and associated facilities’’ for ‘‘nordic and al- pine ski areas and facilities’’. Subsec. (b). Pub. L. 112–46, § 3(2), substituted ‘‘skiing and other snow sports and recreational uses authorized by this section’’ for ‘‘nordic and alpine skiing oper- ations and purposes’’ in introductory provisions. Subsec. (c). Pub. L. 112–46, § 3(4), added subsec. (c). Former subsec. (c) redesignated (d). Subsec. (d). Pub. L. 112–46, § 3(5), added subsec. (d) and struck out former subsec. (d). Prior to amendment, text read as follows: ‘‘Within one year after October 22, 1986, the Secretary shall promulgate rules and regulations to implement the provisions of this section, and shall, to the extent practicable and with the consent of existing permit holders, convert all existing ski area permits or leases on National Forest System lands into ski area permits which conform to the provisions of this section within 3 years of October 22, 1986.’’ Pub. L. 112–46, § 3(3), redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e). Subsec. (e). Pub. L. 112–46, § 3(6), substituted ‘‘the Na- tional Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and the Forest and Rangeland Renewable Re- sources Planning Act of 1974 (16 U.S.C. 1600 et seq.)’’ for ‘‘the National Environmental Policy Act, or the Forest and Rangelands Renewable Resources Planning Act as amended by the National Forest Management Act’’. Pub. L. 112–46, § 3(3), redesignated subsec. (d) as (e). Statutory Notes and Related Subsidiaries SHORT TITLE OF 2011 AMENDMENT Pub. L. 112–46, § 1, Nov. 7, 2011, 125 Stat. 538, provided that: ‘‘This Act [amending this section and enacting provisions set out as notes under this section] may be cited as the ‘Ski Area Recreational Opportunity En- hancement Act of 2011’.’’ SHORT TITLE Pub. L. 99–522, § 1, Oct. 22, 1986, 100 Stat. 3000, provided that: ‘‘This Act [enacting this section and provisions set out as a note below] may be cited as the ‘National Forest Ski Area Permit Act of 1986’.’’ EFFECT Pub. L. 112–46, § 4, Nov. 7, 2011, 125 Stat. 540, provided that: ‘‘Nothing in the amendments made by this Act Page 946 TITLE 16—CONSERVATION § 497c [amending this section] establishes a legal preference for the holder of a ski area permit to provide activities and associated facilities authorized by section 3(c) of the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b(c)) (as amended by section 3).’’ PURPOSES Pub. L. 112–46, § 2, Nov. 7, 2011, 125 Stat. 538, provided that: ‘‘The purpose of this Act [see Short Title of 2011 Amendment note above] is to amend the National For- est Ski Area Permit Act of 1986 (16 U.S.C. 497b)— ‘‘(1) to enable snow-sports (other than nordic and alpine skiing) to be permitted on National Forest System land subject to ski area permits issued by the Secretary of Agriculture under section 3 of the Na- tional Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b); and ‘‘(2) to clarify the authority of the Secretary of Ag- riculture to permit appropriate additional seasonal or year-round recreational activities and facilities on National Forest System land subject to ski area per- mits issued by the Secretary of Agriculture under section 3 of the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b).’’ Pub. L. 99–522, § 2, Oct. 22, 1986, 100 Stat. 3000, provided that: ‘‘The purposes of this Act [see Short Title note above] are to— ‘‘(a) provide a unified and modern permitting proc- ess for nordic and alpine ski areas on national forest lands; ‘‘(b) provide for ski area permits which more close- ly reflect the acreage and other physical require- ments of modern ski area development; and ‘‘(c) provide a permit system which will be more commensurate with the long-term construction, fi- nancing, and operation needs of ski areas on national forest lands.’’ § 497c. Ski area permit rental charge (a) In general The Secretary of Agriculture shall charge a rental charge for all ski area permits issued pur- suant to section 3 of the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b), the Act of March 4, 1915 (38 Stat. 1101, chapter 144; 16 U.S.C. 497), or the 9th through 20th paragraphs under the heading ‘‘SURVEYING THE PUBLIC LANDS’’ under the heading ‘‘UNDER THE DE- PARTMENT OF THE INTERIOR’’ in the Act of June 4, 1897 (30 Stat. 34, chapter 2), on National Forest System lands. Permit rental charges for permits issued pursuant to the National Forest Ski Area Permit Act of 1986 shall be calculated as set forth in subsection (b). Permit rental charges for existing ski area permits issued pur- suant to the Act of March 4, 1915, and the Act of June 4, 1897, shall be calculated in accordance with those existing permits: Provided, That a permittee may, at the permittee’s option, use the calculation method set forth in subsection (b). (b) Formula (1) The ski area permit rental charge (SAPRC) shall be calculated by adding the permittee’s gross revenues from lift ticket/year-round ski area use pass sales plus revenue from ski school operations (LT+SS) and multiplying such total by the slope transport feet percentage (STFP) on National Forest System land. That amount shall be increased by the gross year-round rev- enue from ancillary facilities (GRAF) physically located on national forest land, including all permittee or subpermittee lodging, food service, rental shops, parking and other ancillary oper- ations, to determine the adjusted gross revenue (AGR) subject to the permit rental charge. The final rental charge shall be calculated by multi- plying the AGR by the following percentages for each revenue bracket and adding the total for each revenue bracket: (A) 1.5 percent of all adjusted gross revenue below $3,000,000; (B) 2.5 percent for adjusted gross revenue be- tween $3,000,000 and $15,000,000; (C) 2.75 percent for adjusted gross revenue between $15,000,000 and $50,000,000; and (D) 4.0 percent for the amount of adjusted gross revenue that exceeds $50,000,000. Utilizing the abbreviations indicated in this sub- section the ski area permit fee (SAPF) formula can be simply illustrated as: SAPF = ((LT + SS) × STFP) + GRAF = AGR; AGR × % BRACKETS (2) In cases where ski areas are only partially located on national forest lands, the slope trans- port feet percentage on national forest land re- ferred to in this subsection shall be calculated as generally described in the Forest Service Manual in effect as of January 1, 1992. Revenues from Nordic ski operations shall be included or excluded from the rental charge calculation ac- cording to the percentage of trails physically lo- cated on national forest land. (3) In order to ensure that the rental charge remains fair and equitable to both the United States and the ski area permittees, the adjusted gross revenue figures for each revenue bracket in paragraph (1) shall be adjusted annually by the percent increase or decrease in the national Consumer Price Index for the preceding calendar year. No later than 3 years after November 12, 1996, and every 5 years thereafter the Secretary shall submit to the Committee on Energy and Natural Resources of the United States Senate and the Committee on Resources of the United States House of Representatives a report ana- lyzing whether the ski area permit rental charge required by this section is returning a fair mar- ket value rental to the United States together with any recommendations the Secretary may have for modifications of the system. (c) Payment The rental charge set forth in subsection (b) shall be due on June 1 of each year and shall be paid or prepaid by the permittee on a monthly, quarterly, annual or other schedule as deter- mined appropriate by the Secretary in consulta- tion with the permittee. Unless mutually agreed otherwise by the Secretary and the permittee, the payment or prepayment schedule shall con- form to the permittee’s schedule in effect prior to November 12, 1996. To reduce costs to the per- mittee and the Forest Service, the Secretary shall each year provide the permittee with a standardized form and worksheets (including an- nual rental charge calculation brackets and rates) to be used for rental charge calculation and submitted with the rental charge payment. Information provided on such forms shall be compiled by the Secretary annually and kept in the Office of the Chief, United States Forest Service.