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
Sorry, but you shouldn't expect to always have a house and home in a National Park landscape. I see it like renting. You live there, but once your lease runs out, you don't exactly have the upper hand. You don't own the house in which you reside. I'm not exactly a fan of the system that is setup in the Grand Canyon either, the more I see what is happening there. Call me a "nature nazi" but I dont think villages should be built in a national park to support hotels, restaurants and gas stations to increase tourism. I guess, i'm used to the "old school west" where you bring your own water and food.
Gary-
Do you think the parks should be run entirely by transient staff, who get out when they want a family, or when some manager decides they'd rather have different transients? How long should a good employee expect to be able to stay? 6 months? 2 years? 5? Does your place of work get rid of good employees, or encourage them to stay? You do know that there are skilled tasks that need to be done in parks, right? That some familiarity with the park on the part of its employees is a good thing? Do you want to be drinking water that is treated by a revolving door of people who may or may not understand the system? If you were lost, would you want the people looking for you to be fresh in from some other park 1000 miles away? Even basic service jobs are better done by a stable workforce. To be hostile to peoples' desire for some small amount of job security just because they work in a park is a little bit odd to me (I won't say off the hook crazy).
Gary, try reading:
" It is payed for by gasoline taxes paid by those that drive on the highways and by car registration fees and taxes."
Noone said anything about tolls (though they do contribute). Now if you have a way to buy gas without paying a tax, let us know.
No, lifelong jobs shouldn't be granted to anyone. I don't think anyone said that, I know I didn't. There is a middle ground between jobs for life and complete chaos. The lifelong jobs are one of the biggest problems within the NPS. But clearing a bunch of people out at random, or because their boss didn't get their own job done, is an even worse management decision. If people are doing their job well, you keep them. If they aren't, you get rid of them. They are going to have concession workers at the Grand Canyon eventually. This is just people playing chicken. If they have some massive turnover because NPS and Xanterra management didn't do their jobs and come to an agreement, why should the people displaced by it not be angry?
I have a family, and I work in a NP, and view myself as a transient, even if i've been at the job for a little more than a few years. At any time something can shift and change, and which point i'll move on and adapt. All jobs are transient, and to think that a life time long term position should be granted to restaurant and hotel employees is not exactly a smart managerial decision.
I get that the Grand Canyon has water issues, and that developing towns and cities to support the infrastructure is not exactly feasible. But on the same token, I would like national parks to remain more off the grid, than on them. That's why they are special places, and if anyone hikes more than 10 miles off into the canyon, they should know what they are getting into, and not need to rely on a xantera employee for expertise.
Anytime I ever go into the desert, I carry my own water and food. It' just how I operate. It's nice that those amentities can be there, but it's not a necessity.
'Pariah of the park' is mistaken. Dave Uberuaga did not break "up those pesky concessionaires at Mount Ranier..." He oversaw the park's plan to divide the former monopoly Rainier climbing guide concession held by RMI into equal thirds. When the dust cleared, RMI's share was increased to half, with the remainder split between two new concessionaires. The fact that Uberuaga sold his house to the owner of RMI for three times its value and lied about the transaction to investigators led the Inspector General's office to recommend him to the Department of Justice for prosecution:
http://www.adventure-journal.com/2011/10/former-rainier-park-chief-under...
A person of such questionable integrity should have been retired at the very least, instead of promoted to where he could cause the current mess. This makes Director Jarvis look to be lacking in integrity as well, especially considering his brother was a lobbyist for other Grand Canyon concessionaires.
re: "I believe Xanterra is in the transient employee business. All employees below Director and manager status are looked on as transient employees." That may be the way top management looks at it, and that's probably not unreasonable for employees like the entry level housekeeping and food service staff, but the reality for any organization the size of this one is that there is a great need for experience, skills and institutional knowledge at supervisory levels and sometimes the "worker bee level."
Example: maintenance functions (HVAC, electrical, plumbing, etc) in large structures are always subject to quirks, and even something as basic as knowing where shutoff valves and circuit breakers are located isn't learned overnight. Those concerns are complicated in old buildings such as the El Tovar hotel, where systems have undergone numerous changes over the years.
If I were taking one of the mule rides into the canyon, I'd certainly not want a "transient" wrangler in charge of the animals or the tourists. Plenty of other examples, but in order to run a quality operation that's as broad in scope as those at Grand Canyon, you've got to have experienced employees at many levels. If these employees are given the boot, it will be very hard to replace that knowledge by hiring off the street.
I have no personal insights into the contract questions, but it sound as if both NPS and company management have handled this situation very poorly.
Given the lack of takers for a new contract, the NPS should have gone ahead with an extension of the existing one, to allow everyone time to regroup.
Let us all take a closer look at what is being said here:
“...lawyers for the NPS argue...concessionaire...trying to thwart competition and (feels entitled) to remain there.” - The actuality is that all National Parks put their contracts up for bids every few years. This is standard procedure and the GC is no exception. The only difference is is that the grandfather company of Xanterra, the Fred Harvey company, was here long before this was a National Park and put in a lot of the historic buildings that make up the history of the GC. Whoever takes over the bid has to pay for them and no one wants to. Also, with the new bidder must pay the NPS a much larger chunk of the proceeds from sales than Xanterra has in the past which is intimidating to new bidders.
“...there is no temporary contract....” - There was; the NPS just yanked it out when Xanterra sued them.
“...the Park Services $100 million buy-down....not welcomed by Xanterra.” - That is because the amount was $157 million (the article states $198 million. Which amount is accurate is somewhere in their paperwork). The GC came up with the $100 by borrowing it from other National Parks who in turned raised their rates and the GC itself also raised its taxes and entrance fees (in other words YOU are paying for this whole situation). The main purpose of the buy out appears to be that the NPS does not having to share control of the Park with any other entity than its authoritarian self and does not like the clout that Xanterra has from owning the historic buildings and railroad. The reason for the Parks buyout in the first place is that no one else wanted to put forth that much money to take over the concessionaire.
“In an effort to maintain its advantageous position...” - Advantageous? In the deal with Delaware North the Park Service took away critical employee housing from Xanterra, the more populous concessionaire and gave it to themselves (they kept the nicest apartments at the Desert View site for their Rangers) and to Delaware North which, if imposed in the middle of winter, would leave many Xanterra employees out on the street, in unheated cabins or having to double up in already crowded facilities. It is more like the Park is playing favorites.
“Xanterra fails to show that it will suffer irreparable harm...” - Hundreds of employees thrown out of work and their homes during the Christmas Holidays in a remote area of the country, many of whom do not have transportation is not 'irreparable harm'? Losing the framework between t he major hotels, restaurants, train, tour buses, mule rides and information center of the whole South Rim of the Canyon is not 'irreparable harm?” Shall we let the whole thing collapse and see if the NPS and all the rest of the people involved in the Park do not also suffer 'irreparable harm'?
“...the expiration of Xanterra's contract...which has already been extended...maximum period allowed...” - That is because no other concessionaire would step up to take over the contract. The Park would have essentially shut down had Xanterra not stayed.
“...alleged injuries are not traceable to any NPS action...” - Does constantly limiting Xanterra and other Canyon businesses in many ways not have something to do with it? Outmoded streets not wide enough for buses, lack of sidewalks in major areas endangering pedestrians, unclear signage confusing already lost drivers, lack of restrooms in areas heavily visited by guests, refusal to update facilities for a growing number of visitors (we get 5 million a year now) while at the same time wanting the revenue thereof, inadequate lighting in crucial areas endangering guests and drivers, not allowing the building of facilitates to house the employees needed to run the Park (the same is a chronic problem at most National Parks) to name some of the short-comings.
“...they denied that visitors...would be greatly impacted....” - Hmm.... Hermits Rest shut down, no taxi's, no tour buses to the extreme west and east parts of the park, limited transport to the airport and the nearest town Tusayan, no historic mules rides in the Park, no daily train bringing guests from the transportation hub Williams, no restaurants and hotels except one that normally closes down for winter, no repair service for broken down guest's autos, no fire and safety, no security. OK, if you say so...........
It definitely took lawyers to come up with these complaints, or shall I say taxpayer-funded highly paid piranha who don't give a hoot what the real truths of the matter are. Here is what is apparently at the root of the whole problem:
Xanterra, the offspring of the Fred Harvey Company that began business at the Canyon DECADES before it was made into a National Park and instituted the majority of the historic businesses, sites, roads, trails and other attractions at the Canyon, owns the majority of what makes the GC what it is. The NPS is known for liking to have an authoritarian hand over its parks and does not like having to answer to anyone else, especially concessionaires. It looks like the Park would like to be rid of Xanterra because of its clout and influence on GC affairs and replace it with a number of smaller concessionaires who would be more malleable to its rule. In ousting Xanterra the Park has shown amazing coldness for an organization that prides itself on being the visiting public's 'friend in green'. At the very first hearing on the transfer of concessionship the Park took away a huge amount of Xanterras housing (which was already crowded) and gave to to the much smaller concessionaire. When Xanterra commented that this was not enough space to house their people the Park's literal answer in so many words was “That's your problem.”.
This won't be the first time the Park has kicked a grandfathered group out of its boundaries. In the early 1900's they evicted the Havasupai Natives out of Indian Gardens, a major hiking destination, an oasis in the midst of the barren inner desert and one of the few populated areas down inside the Canyon. The Havasupai had been living there for hundreds of years before the new landlord showed up. They also had to pack up and move on- no questions asked and no rebuttals tolerated.