In a strongly worded response to Xanterra Parks & Resort's request for an injunction to remain in business past year's end on the South Rim of Grand Canyon National Park, lawyers for the National Park Service argue that the concessionaire is trying to thwart competition and feels its history on the rim entitles it to remain there.
Less than three weeks remain until Xanterra's current contract to operate lodging and dining facilities on the South Rim expires, and there is no temporary contract in place to ensure continued operation of the El Tovar Hotel, Bright Angel Lodge, Maswick Lodge, and other lodgings and restaurants beyond New Year's Eve.
On December 16 a U.S. District Court judge in Denver is scheduled to hear arguments over Xanterra's request that the Park Service be barred from closing the South Rim lodging and dining operations on December 31 and allow the concessionaire to remain in business there until a new 15-year contract is awarded.
Doing so, the federal government counters in its 48-page response, would not maintain the "status quo," but rather upset it, cause competitive harm, and prevent the Park Service from making concessions contracts more competitive as Congress directed it to through the National Parks Omnibus Management Act of 1998.
"In its Complaint and Motion for a Preliminary Injunction, Xanterra stresses that it has operated at the South Rim of the Grand Canyon for over a century, as though this history constituted an entitlement to continued operations," the government's response reads. "Xanterra has resisted the Park Service's efforts to enhance competition for the South Rim concessions, complaining, for example, that the Park Service's $100 million buy-down of its LSI was 'not requested nor welcomed by Xanterra.'
"In an effort to maintain its advantageous position, Xanterra now seeks a preliminary injunction that would allow it to continue operating nearly all of the South Rim concessions, deprive Delaware North of the benefit of its successful bid for a new contract that includes some concessions that Xanterra now operates, prevent the Park Service from entertaining bids from any competitors, and limiting the terms of a temporary contract to essentially the terms of Xanterra's expiring contract ' all for the duration of this litigation."
The clock is winding down on efforts to keep the El Tovar Hotel open past year's end/Xanterra Parks & Resorts
The standoff between the Park Service and Xanterra has been brewing for more than a year, and has laid open the problem of possessory interest, or "leaseholder surrender interest," in the National Park System. That interest essentially is built up as a concessionaire invests in properties it operates for the Park Service. If a new concessionaire is awarded a contract, it must pay the outgoing concessionaire the amount of LSI it has accumulated.
At the Grand Canyon, Xanterra's LSI was determined in 2013 to stand at $198 million -- "the highest amount associated with a single contract in Park Service history," according to the government's response to Xantera's request for an injunction. Park Service officials viewed that amount as a barrier to other companies that might be interested in operating the South Rim concessions, and a decision was made to 1) break the single concessions contract for the South Rim in two, and 2) buy down Xanterra's LSI by $100 million, a sum 88 park units contributed to earlier this year.
It was in 2013 that the Park Service announced that it would split the single South Rim contract into two, and both Xanterra and Delaware North bid on the smaller of the two. This past August the Park Service announced that it was awarding the contract to Delaware North. That left the larger contract, known as the "001 Contract," up in the air. That contract had been extended three times to Xanterra after the initial contract expired. The third extension, which runs out this Dec. 31, is the last one allowed by law.
It's the contractual expiration of the 001 contract that is the "status quo," the government argues, not Xanterra's right to continue to run the concessions. If the court grants the injunction, it would go against the status quo, the government contends. Granting of an injunction also would deny Delaware North the contract it rightfully won for the other concessions on the South Rim, the motion argues.
"...Xanterra fails to show that it will suffer irreparable harm because of any actions by the Park Service. Instead, the alleged harms are the result of the expiration of Xanterra's existing contract (which has already been extended for the maximum period allowed by law) and its failure to be the successful bidder on one of the new contracts," the motion reads. " In addition, the balance of equities favors the Park Service. In contrast to Xanterra, whose alleged injuries are not traceable to any NPS action and are therefore illusory, an injunction would prevent the Park Service from exercising its lawful authority to execute a contract with Delaware North.
"In the larger scheme, it would also thwart the goal of fostering competition among prospective concessioners, and would introduce uncertainty into the concession contracting process going forward. Moreover, an injunction would be adverse to the public interest, because it would stymie the competitive process that helps ensure satisfactory service to Park visitors and a fair return to taxpayers."
Park officials did not respond Thursday to an inquiry into whether they have a plan for managing South Rim concessions if the injunction is denied and if a temporary 1-year contract is not awarded. However, in the government's response park officials said they were working hard to negotiate a temporary agreement. Too, they denied that visitors to the park would be greatly impacted if there's a lapse in hotel and restaurant operations.
"Even in the unlikely event that the Park Service is unable to enter into a temporary contract to address the services covered by the 001 Prospectus before the existing contract expires on December 31, 2014, the Park itself will remain open to day visitors and tent campers, and the concessions under the new 003 (Delaware North) Contract would be available, including an RV campground," the motion notes.
"Visitors may be inconvenienced by restaurant and other closures, but only a small minority will have planned to stay in concessioner lodging, and given the time of year, they will doubtless be able to find accommodations nearby. Nonetheless, even a short interruption of some services in the Park is not a desirable outcome, and NPS is working hard to prevent this. However, it is not in the public interest to keep all of the South Rim concessions open at any cost."
Comments
It is not difficult. The Europeans do it all the time. But then, they have first-class rail passenger service, both heavy and light rail. We Americans are the only ones always talking about the "drive."
And no, trailadvocate, we're not talking about the great cutlural resources that, yes, were built when the Santa Fe Railway "filtered" visitation to the rim. We are talking about the "drive" and our perpetual love affair with cars.
This is to expain why all of our hand-wringing about global warming is pointless, too. We just won't give up how much we love spreading asphalt in the name of "convenience." And now the Indians want to spread even more of it while building their cable car down to the river. Next up? Grand Canyon Casino? Count on it, because that is the real debate that no one wishes to address.
"We have met the enemy, and he is us." (Pogo, 1969) It is all about me, me, me. Mary Jane Colter? None of us would want her designing the Grand Canyon today, because yes, she would be in favor of limiting cars and protecting silence. She would be in favor of art over spreading asphalt. Long ago, our nation fired the likes of her.
Alfred, you are the voice of reason here. I do think limiting development, even if it means tearing down all the "amentities on the South Rim" is what should happen, but unfortunately it won't happen. A high speed rail from phoenix to the canyon rim sounds sane as well. But, once again, this is America. We can be 20 steps behind other countries.
Jim,I think it is a good idea that the consessions be opened to competition. It seems more an implementation issue than Congressional mandate that is the problem - i.e. creating too high a LSI.
Actually, Gary, history is the true voice of reason. All of this we once had and threw away, including the commitment to slowing down that is necessary to making preservation through public transportation work. Years ago, I was a consultant to the Grand Canyon Railway on expanding light-rail services to South Rim. That is a strory for another day. Suffice it to say that the biggest opponent to the plan was TIME, as in not having enough of it, or making enough of it, work for preservation. All of the arguments came down to time--from the Park Service, from Xanterra, from the bus companies, from Tusayan, etc., etc., etc. If people can't see the Grand Canyon IN A DAY, and in their cars, most visitors just won't come.
And so you (and I) are forced to use terms like high-speed rail. Again, what's the hurry? How did we ever let ourselves--and our national parks--get boxed into the argument that speed is the be-all and end-all of life in the United States? One day "time" will run out for all of us. I wonder then how we'll think about "speed."
LOL
That is why everyone is flocking to "other countries".
Our existing passanger train systems can't exist even in high density areas without massive subsidies. We don't need more of these money pits.
BTW Roger - have you been to Maui lately. They have taken a magnificant island and ruined the view for at least half of it with a wind farm up the spine of West Maui Mountain. Talk about eyesores. A local said they were promised 15% reductions in energy costs - surprise, surprise, it never heppend.
It's a good question. I wonder if it has anything to do with the steady decline over the past few decades in the amount of vacation time for Americans.
Alfred - You make some good points, and I fully agree it's a shame for people to try to "see" the Grand Canyon in a day ... or less. However, if they're to have the chance to be there overnight, and experience those sunset and sunrise moments, and others in between, the reality is they have to have a place to sleep that's a lot closer than Flagstaff, etc. - and most of them won't be camping these days. Yes, the amount and location of development on the S. Rim isn't ideal, and if we were starting from scratch it could be done much better. However, tossing it all out isn't the answer - and the current system of concessioner contracts is certainly not working either. It's a complex problem.
EC, your opinion tends to conclude that our highway system fixes itself and doesn't require repairs and subsidies. I think it would be very smart to have a rail system between certain corridors in this country. One such corridor that goes from Phoenix to Vegas would be smart. LA to Vegas has been in the works for a while now, and it probably will occur in a decade or so. Anyone that has ever driven between LA and LV during a friday night or sunday afternoon would understand the need to create a high speed rail link.
And from this map, people just don't migrate to the US. Once again, self-awareness is a special thing. Get some'.
http://www.theatlantic.com/international/archive/2014/07/how-not-to-desi...