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Kings Canyon cave stays closed in clash between Forest Service, private firm

This pedestrian bridge was damaged during the Rough Fire. It is in the only public walkway to Boyden Cavern, and the question of who will repair it is unresolved.
This pedestrian bridge was damaged during the Rough Fire. It is in the only public walkway to Boyden Cavern, and the question of who will repair it is unresolved. Special to The Bee

The manager of the Boyden Cavern in the Sequoia National Forest is at odds with his landlord over who will foot the repair bills for a pedestrian bridge badly damaged in last year’s devastating Rough Fire.

Until that issue of jurisdiction gets settled, no one is able to step foot into the natural wonder that is Boyden Cavern, a cave in Kings Canyon.

Stephen Fairchild, president of Boyden Cavern Adventures & Tours Inc., said the U.S. Forest Service has kept him out of business – and 10 people out of work – for more than a year. Those employees have missed out on $80,000 in seasonal wages, and his business has lost around $300,000 in gross profits due to the closure. He understands the safety reasons for shutting the cave down while one of the largest wildfires in state history raged nearby in the summer of 2015, but he believes the subsequent refusal to repair a federally owned bridge and restore public access shows the federal government’s disregard for small-business owners.

“(The Forest Service) is my landlord, and I want it to stand firm on its legal responsibility,” Fairchild said. “Instead, they’re saying ‘Oh, it’s not our fault the fire burned you out of business. We have no interest in helping you.’ 

Sequoia National Forest Supervisor Kevin Elliott says the permit that Fairchild receives each year requires him to maintain the buildings and bridges on the property. Fairchild is also required to have insurance, which Elliott contends should cover wildfire repairs. The Forest Service has waived Fairchild’s permit fees – typically around $11,500 – while Boyden isn’t operating, and Elliott has even offered to refund the bridge’s repair costs by way of not charging Fairchild future permit fees.

However, the two sides appear to be far apart. Elliott and Fairchild’s attorney have exchanged sternly worded letters challenging each other’s positions in the last few months. Fairchild is hoping to avoid a lawsuit, but he’s also not interested in the government’s offers. He wants them to “do the right thing” and fix the bridge so the cavern can once again open to the public.

A fire with eyes

A lightning strike on a hillside above the Kings River on July 31, 2015, started the Rough Fire. Because of its remote location, putting boots on the ground was not an option. Firefighters electronically monitored the small fire for several days, hoping it would burn out as many do.

It didn’t.

Instead, the Rough Fire snaked across more than 150,000 acres in the Sequoia and Sierra national forests, as well as Kings Canyon National Park. It dodged expertly planned fire containment lines for more than three months. It changed direction. It climbed mountains. It came back from the dead.

151,623The total acreage of the Rough Fire

Miraculously, the losses during one of the largest wildfires in California history were minimal. The Kings Canyon Lodge is believed to be the only structure lost. No one was killed, and only a few of the thousands of firefighters called into action from around the country suffered minor injuries.

The blaze did, however, claim the wood decking and side railing of a bridge that is along the only public walkway to the Boyden Cavern. The public has been touring this large cave roughly halfway between Cedar Grove and Grant Grove since the 1950s. Fairchild’s company offers educational tours and climbing sessions to about 25,000 visitors per year. The cave is open from late April to mid-November.

The arguments

In a letter to Fairchild’s attorney dated July 28, Elliott laid out the Forest Service’s position.

He said he believes the steel beams that support the Boyden bridge, which appear to be intact, may not be structurally sound and should either be replaced or thoroughly tested. The Forest Service has suspended Fairchild’s permit until “public access to Boydern Cavern was restored.” In order for that to happen, the bridge must be brought up to the Forest Service’s standards.

Neither Fairchild nor the Forest Service have an estimate for how much the proposed repairs would cost.

Fairchild said he believes the bridge may not even need repair and he doesn’t want to pay for the tests. He originally asked the Forest Service to compensate him for the business lost during his permit’s suspension, which Elliott refused to do, but has since backed off those claims.

It’s weird not to work. You spend your whole life trying to work and make your life better.

Stephen Fairchild, whose business has not operated for a full calendar year

Elliott pointed directly to the language in the permit that Fairchild and thousands of other people sign with the government each year. The first page of the permit requires the “operating and maintaining of government owned improvements,” under which the bridge is listed. It also contains a clause that reads:

“The holder assumes all risk of loss to the authorized improvements. Loss to any authorized improvements may result from but is not limited to theft, vandalism, fire and any firefighting activities (including prescribed burns), avalanches, rising waters, winds, falling limbs or trees and acts of God. If authorized improvements in the permit area are destroyed or subsequently damaged, the authorized officer shall conduct an analysis to determine whether the improvements can be safely occupied in the future and whether rebuilding should be allowed …”

Permitees are also required to have property insurance for all of these improvements, Elliott said. The Forest Service requires permitees to use all proceeds from this policy “to repair, rebuild, restore or replace damaged government property covered by the policy.”

Fairchild’s attorney, Kevin Garden, responded to Elliott’s letter with his own letter on Aug. 3.

Garden denied that the permit requires Fairchild to rebuild anything. Rather, he must maintain the existing structures. He points to another clause of the same permit that outlines exactly what maintenance conditions must be met: “The holder shall maintain the authorized improvements and permit area to the standards of repair, orderliness, neatness, sanitation and safety acceptable to the authorized officer and consistent with other provisions of this permit.”

Garden contends that maintaining and rebuilding are two entirely different things.

As for the insurance requirement, Garden again disagreed. He points to a clause that notes: “The holder shall have in force property insurance for the construction camp and residence in the minimum amount of $70,000.”

Garden said that the bridge has never been a part of Fairchild’s property insurance policy. Fairchild has sent a copy of this policy to the Forest Service each year since buying the permits from his father eight years ago. By continuing to issue the permit and not protesting the policy, Garden said, the government has implicitly agreed that the bridge did not need to be insured.

Wildfire and other catastrophic events are an inherent part of the operating environment on National Forest Service lands.

Sequoia National Forest Supervisor Kevin Elliott

Going forward?

Fairchild has insisted he does not wish to file a lawsuit, because doing so would only cost more money and would not put 10 people back to work. Jobs in the Sierra are rare, he added, so a small number like 10 means a lot.

To that end, Fairchild has tried to enlist the help of Rep. Tom McClintock, a Republican whose Gold Country district stretches south to Kings Canyon. Fairchild said he believes McClintock could step in on his behalf and compel the Forest Service to “do the right thing.”

He was probably wrong.

Bill George, McClintock’s press secretary at his Roseville office, offered this statement: “We would like to see the issue resolved so that the business can continue operating and offer recreational opportunities. We have met with Mr. Fairchild on multiple occasions. However, this is a legal issue involving the Forest Service and the concessionaire, and those parties must resolve the issue.”

Fairchild must now decide between a lawsuit, some sort of compromise with the Forest Service or continuing not to operate. All three will cost him financially.

He called Elliott’s refund offer “an interesting step,” but said he is not considering it. His business has plenty of rock-climbing equipment, so he asked the Forest Service if it would allow those visitors who are willing to climb their way to the cavern’s entrance to do so. Elliott refused.

With no agreement in sight, it seems increasingly likely that would-be spelunkers will have to wait until next year to explore Boyden Cavern.

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