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FOREST SERVICE HANDBOOK
PACIFIC NORTHWEST REGION (REGION 6)
PORTLAND, OREGON
FSH 2709.11 – SPECIAL USES HANDBOOK
CHAPTER 10 – APPLICATION AND AUTHORIZATION PREPARATION PROCESS
R6 Supplement No.: 2709.11-2009-1
Effective Date: January 27, 2009
Duration: This supplement is effective until superseded or removed.
Approved:
Lisa E. Freedman
Acting Regional Forester
Date Approved: January 22, 2009
Posting Instructions: Supplements are numbered consecutively by title and calendar year.
Post by document; remove the entire document and replace it with this supplement. Retain this
transmittal as the first page(s) of this document. The last supplement to this Handbook was
R6/PNW FSH 2709.11-2007-2 to Chapter 60.
New Document
R6 Supp. FSH 2709.11, 10
14 pp
Superseded Document(s)
by Issuance Number and
Effective Date
R6 FSH 2709.11-2006-1 to Chapter 10,
dated 11/14/2006
13 pp
Digest:
A revised directive on commercial general liability insurance (FSM 2713) went into effect
October 17, 2008 establishing a schedule of minimum liability insurance coverage by activity.
This national schedule for minimum liability coverage replaces the schedule found in R6
Supplement No.: 2709.11-2006-1, 14.3 -Exhibit 01, Minimum Insurance Coverages for Special
Uses. Minimum Coverages Amounts for Liability Insurance can be found at
FSM 2713.1 - Exhibit 01.
Section 14.3, 7. Indemnity Requirements for Special Use Authorizations Issued to the State of
Oregon and its Agencies was added establishing procedures to condition the indemnification
requirements in the standard liability clauses for the State of Oregon and its agencies.
R6/PNW SUPPLEMENT FSH-2709.11-2008-1
EFFECTIVE DATE: January 27, 2009
DURATION: This supplement is effective until superseded or removed.
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10.2 – Objectives
Administer the special-use authorization requirements regarding liability insurance requirements
in keeping with the intent of FSM 2713.1. The objectives related to liability insurance
requirements are to:
 Focus limited Forest Service resources by reducing unnecessary reviews of insurance
policies;
 Limit Forest Service liability;
 Define roles of the holder and of the Forest Service;
 Ensure the holder provides adequate liability insurance coverage.
10.4 – Responsibility
(See R6 Supplement to FSM 2704 for further direction on positions with responsibilities in the
special use application and authorization process.)
10.5
Definitions
(See FSM 2705, FSH 2709.11, 10.5 and 36 CFR 251.51 for additional definitions.)
Additional Insured. A person or entity, other than the named insured, that is added to the
insurance policy, often through an endorsement, and that has the same coverage as the named
insured under the policy. In the case of special use authorizations, the additional insured is the
United States.
Aggregate Limit. The maximum amount of coverage for third-party property damage or
personal injury, under a liability insurance policy during the term of the policy (which is usually
one year), regardless of how many separate incidents of third-party property damage or personal
injury occur during that period.
Application. (See FSH 2709.11, 10.5)
Authorized Officer. (See FSM 2705).
Case Manager. A special use administrator qualified to process a special use proposal and
application, from initial contact with the proponent to denial or authorization of the use. For
routine proposals, a case manager meets the competency requirements for a special use
administrator and has the knowledge and experience commensurate with the type and complexity
of the proposed use. For unusual and complex uses, such as those typically authorized by term
permits, leases, or easements, the case manager meets the competency requirements for a special
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DURATION: This supplement is effective until superseded or removed.
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use specialist or works directly under such a specialist's guidance.
Certificate or Declaration of Insurance. A statement of coverage issued to an insured under an
insurance policy outlining the insurance benefits and principal provisions applicable to the
insured.
Claims-Made Policy. An insurance policy that covers claims made during the time the policy is
in effect.
Combined Single Limit Policy. A policy that subjects third-party property damage, death of or
injury to one person, and death of or injury to more than one person to a single limit, rather than
separate limits, and that does not have limits for each occurrence and aggregate limits for each
category of loss.
Concession. A valid special use authorization for the provision of commercial recreation
services, facilities, or activities on National Forest System lands. Examples of commercial
recreation services, facilities or activities include ski areas, resorts, marinas, concession
campgrounds, outfitting and guiding, recreation events and other public services.
Declarations. Statements in an insurance policy about the type and extent of coverage under the
policy.
Indemnify. To secure against injury, loss, or damage that may occur in the future, or to provide
compensation for injury, loss, or damage already suffered.
Insured. A person or entity covered by an insurance policy, including the named insured and any
additional insured.
Insurer. A person or entity that agrees, by contract, to assume the risk of another's loss and to
compensate for that loss.
Liability Insurance. Insurance that covers claims for personal injury and third-party property
damage (damage to property other than that owned by the insured or additional insured) up to the
coverage limits, subject to the terms of the insurance policy.
Liability Limit. The maximum amount the insurer is obligated to pay for a certain category of
loss.
Liability Limit Per Occurrence. The maximum amount the insurer is obligated to pay for each
occurrence of third-party property damage or personal injury during the term of the policy.
Named Insured. The person or entity being contracted for, and covered by, the insurance policy
(the permit holder, in the case of insurance obtained pursuant to special use authorizations).
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Occurrence. An incident, including continuous or repeated exposure to conditions that result in
personal injury or property damage, and is covered under the insurance policy.
Occurrence Policy. An insurance policy that allows claims to be made after the policy period has
expired, as long as the loss occurred while the policy was in effect.
Planning Permit. (See FSH 2709.11, 10.5)
Property Insurance. Insurance that covers damage to the property of the insured and any
additional insured.
Proponent. (See FSH 2709.11, 10.5)
Proposal. (See FSH 2709.11, 10.5)
Right of Subrogation. The right of the insurer, when it pays the insured pursuant to an insurance
policy, to succeed to the claims that the insured has against third parties who were responsible
for the loss.
Risk Assessment. A process for determining the potential for the United States to incur loss.
Solicited Proposal. A proposed use of National Forest System lands that is initiated by the Forest
Service through issuance of a prospectus.
Split Limit Policy. A policy that has separate limits for third-party property damage, death of or
injury to one person, and death of or injury to more than one person, and that has limits for each
occurrence and aggregate limits for each category of loss.
Unsolicited Proposal. A proposed use of National Forest System lands that is not initiated by the
Forest Service through issuance of a prospectus.
14.3 – Liability and Insurance Coverage
1. Indemnification. All authorizations, except those issued to federal agencies, must
include a clause that requires the holder to indemnify and hold harmless the United States for any
injury, loss, or damage, including third-party claims, damage to federal property, fire suppression
costs, and environmental harm or injury to natural resources, that arises in connection with the
holder’s use and occupancy. Approved clauses are in chapter 50 of this Handbook.
Any modification of approved indemnification clauses requires approval of the Regional Office,
Director of Recreation, Lands, and Minerals, and the Office of the General Counsel (OGC).
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EFFECTIVE DATE: January 27, 2009
DURATION: This supplement is effective until superseded or removed.
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2. Insurance. A clause requiring insurance sufficient to cover the holder’s obligation to
indemnify the United States for all injury, loss, or damage as a result of claims, demands, losses,
or judgments that arise in connection with the holder’s use must be included in all concession
special use permits. For minimum coverage amounts for liability insurance see FSM 2713.1,
Exhibit 01.
All insurance policies obtained pursuant to a special use authorization shall obligate the insurer
to defend the United States, in relation to all injury, loss, or damage, that arises in connection
with the holder's use and occupancy of National Forest System lands.
Insurance policies shall name the United States as an additional insured and shall not allow the
insurer a right of subrogation against the United States.
The United States Government is self-insuring. Therefore do not include the liability insurance
clause or bond requirement in permits to Federal agencies.
If the facility will be operated by a non-federal third party, a clause should be included that
requires indemnification of the United States and insurance.
3. Property Insurance. The amount of property insurance for federal facilities shall be
determined by the authorized officer. In determining the amount of property insurance coverage
to require, employ sound business management principles and policy considerations, including
consideration of:
a. Which facilities and resources are key to providing public services and the risk of
damage to multiple improvements.
b. The holder's liquid assets, as well as the type of use and the risk of damages or loss
due to activities conducted under the authorization, including the cost of replacement
and other mitigation.
c. The value of the facilities involved, and inherent risk of damage to these facilities.
 Full replacement coverage pays up to the dollar limit in the policy for the cost to
restore or replace the damaged or destroyed property, without deduction for
physical depreciation.
 Current value coverage pays up to the dollar limit in the policy for the current
value of the damaged or destroyed property, taking into account physical
depreciation.
d. Full replacement coverage provides the greatest protection to the United States and
the public for repair or replacement of needed facilities, but may be expensive.
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EFFECTIVE DATE: January 27, 2009
DURATION: This supplement is effective until superseded or removed.
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e. Historic structures may be prohibitive in cost to reconstruct in kind. Insurance
premiums may exceed what could reasonably be expected to be paid by the holder.
In some cases, it may be best to replace a historic structure with a modern building
that can accommodate the functions and capacity of the original structure.
f. The authorized officer may waive property insurance when it has been determined
that facilities will not be replaced or when revenues generated from their use are not
sufficient to cover the cost of insurance
Document the basis of property damage insurance, and attach a list of facilities and their
replacement values to the special use authorization.
4. Liability Insurance Policy Standards. Forest Supervisors should review each permit
issued for the degree of risk involved. For example, some categories of Outfitter/Guide uses are
of lower risks than others. These might include drift boaters or packers versus white water
guiding in Class IV or higher rivers or rock climbing. Another example is when a ski area is a
small "club" type operation. Where determined to be low in risk of potential tort exposure,
Forest Supervisors may reduce insurance requirements to a 25/300/300 minimum level. In some
situations, for example a river with a Class IV difficulty scale, the rating may be based upon a
particular set of rapids, that if not run, would reduce the difficulty to a Class III. Conversely,
where risks appear to be higher, determine increased insurance requirements and document the
rationale.
If contemplating reduction of minimum insurance levels, the holder must outline what operational
changes to make that would reduce the degree of risk involved commensurate with the reduction in
insurance coverage. Document these changes in the holder's annual operation plan.
Policies naming the United States as additional insured "solely as respects liability arising from
acts or omissions of the named insured," are unacceptable. Change the quoted language to
protect the United States. Acceptable language may read "solely as respects liability arising
from operations of the named insured." If there are questions regarding additional coverage
stipulations, submit the additional insured rider to the RLM staff group for review.
Insurance policies meet Forest Service requirements when they are written on any of the
following forms:
a. The Occurrence Form, if adequate occurrence policies are available for the kind of
business authorized.
b. A modified Occurrence Form containing
(1) A claim reporting period requirement and a basic extended reporting period of at
least 2 years for known and reported occurrences likely to result in a claim.
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EFFECTIVE DATE: January 27, 2009
DURATION: This supplement is effective until superseded or removed.
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(2) A feature that requires response to claims for at least 2 years after an incident
occurred if the insured had no way of knowing it had occurred, and therefore did not
report it.
c. A Claims-Made or Modified Claims-Made Form for the kind of business authorized,
when they provide both of the following:
(1) The policies provide at least a two-year basic extended-reporting period.
(2) They include wording, or an endorsement to the effect, that the policy will
respond to claims made within two years of an incident which occurred on National
Forest System lands, and solely in respect to liability arising from the operations of
the named insured, whether the incident had been reported or not.
Claims-Made or Modified Claims-Made Policy Forms do not meet Forest Service
requirements if the minimum two-year extended-reporting period is only available as
an option.
d. Policies must also meet all the following conditions:
(1) They name the U.S. Government as additional insured, and include the
appropriate wording shown in preceding direction.
(2) They meet the minimum coverage requirements for the authorized activities
shown in Exhibit 01 or as required by state law or regulation.
(3) They include an appropriate 30-day notification clause in case of cancellation or
amendment of coverage. When premiums are paid in full prior to use, 10-day
notification of cancellation for non-payment of premiums is acceptable.
(4) The exclusions (if any) listed on the Certificate of Insurance do not include any of
the activities/operations authorized by the permit.
(5) Some insurance policies stipulate that coverage for legal defense costs and
supplementary payments is limited, and any payment of legal defense costs or
supplementary payments reduces the limits of remaining coverage. When holders'
activities are covered by policies containing this stipulation, authorized officers shall
require the holder to have liability coverage greater than the minimum shown in
preceding direction. For example, if the required minimum shown is $300,000, and
the policy has the legal defense cost stipulation, the authorized officer shall require
$500,000 coverage. If the minimum shown is $500,000, the authorized officer shall
require $1,000,000 coverage.
R6/PNW SUPPLEMENT FSH-2709.11-2008-1
EFFECTIVE DATE: January 27, 2009
DURATION: This supplement is effective until superseded or removed.
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5. Waivers of Liability and Acknowledgement of Risk Forms. Insurance companies
often require that their policy holders use waivers-of liability and/or acknowledgement-of-risk
forms. Even when not an insurance company requirement, special use authorization holders
frequently require that their customers sign one or both of these forms before participating in an
activity provided by the holder. Forest Supervisors should be guided by the following:
a. Appropriately worded Acknowledgement-of-Risk forms required by insurance
companies or special-use authority holders are acceptable (Exhibit 02).
b. In certain situations, parents are asked to sign either acknowledgement-of-risk forms
or Waivers-of-Liability forms on behalf of minor children, and have them binding on
the minors. Such agreements may not be binding and therefore should not be
permitted. Often, minor children (under 18) will sign such a contract. Since it is
possible for minor children to disavow the contract later, do not allow holders to
require minors to sign such forms.
c. Do not permit use of Waiver-of-Liability forms (Exhibit 03) except for high-risk
recreation events, such as enduros, road rallies, equestrian events, hang-gliding
contests, and so forth. Many of the forms used for these purposes are unacceptable,
because they would have the participant release the U.S. Government from liability
for its own negligence. This conflicts with the intent of Congress in the Federal Tort
Claims Act, which makes the Federal Government liable for the negligence of its
officers and employees acting within the course and scope of their employment.
Permit use of these forms as long as they do not attempt to require participants to
waive their rights to sue for any cause beyond ordinary negligence. To be sure that
waivers meet legal standards, submit them to the Regional Special Use Coordinator
(RLM) for review before authorizing their use.
Liability insurance is not required to cover participants in recreation events as long as
participants sign an acceptable Waiver-of-Liability form. Sponsors of the event (the
holder) must, however, obtain liability insurance which covers spectators and other
third parties.
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EFFECTIVE DATE: January 27, 2009
DURATION: This supplement is effective until superseded or removed.
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6. Administration Standards. In Region 6, the Gifford Pinchot National Forest
(GPNF), provides a Master Policy Review Program to ensure that policy forms submitted by
brokers or agents meet Forest Service requirements. Because most, if not all, policy forms can
be used to cover a broad spectrum of permitted uses, they are broadly written. Certain facilities
or activities are frequently excluded from coverage, except by endorsement (for example,
swimming pools and watercraft). In other cases, certain activities, such as serving of alcoholic
beverages, are excluded entirely and will not be covered by endorsement but will require
additional insurance policies. Therefore, Forest Supervisors and District Rangers each have
distinct responsibilities in the review of insurance policies under this program, as follows:
a. District Rangers or Forest Supervisors may request or invite insurance companies,
brokers and agents to submit their policy forms for review. The Forest Supervisor
may approve a policy that meets requirements. If there is a doubt about the policy,
submit it to the GPNF staff for review.
b. The GPNF staff, with the advice of the Region 6 Recreation, Lands, and Minerals
Group (RLM) and Office of General Counsel (OGC) as needed, shall review the
policy form to determine whether the U.S. Government is appropriately protected.
c. If the insurance policy is acceptable, the GPNF staff can approve it and assign a
unique master policy number (for example, R-6-03-001) to a policy sent to them,
indicating acceptance.
d. The GPNF staff shall notify Forest Supervisors of policy forms and Certificates of
Insurance that have been reviewed.
e. The reviewing officer shall notify insurance companies, brokers and agents that the
policy form is acceptable and request them to provide a Certificate of Insurance,
including (where applicable) the Master Policy Number, to the authorized officer.
Insurance companies shall include, on the Certificate of Insurance, a list of all
endorsements and exclusions that have been added to the special use authorization
holder's insurance policy form.
f. The special use authorization holder is required to provide a copy of the insurance
policy to the authorized officer.
g. The authorized officer shall review all endorsements or exclusions that are additional
to those provided in the policy form. The purpose of this review is to ensure that all
of the holder's activities and facilities are appropriately covered and that none of the
additional endorsements or exclusions contradicts the coverage described in the
policy form.
h. If there are questions or concerns regarding adequate coverage, the authorized officer
should send the entire policy to the GPNF staff for further review.
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EFFECTIVE DATE: January 27, 2009
DURATION: This supplement is effective until superseded or removed.
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7. Indemnity Requirements for Special Use Authorizations Issued to the State of Oregon
and its Agencies. Forest Service regulations at 36 CFR 251.56(d)(1) require holders of special
use permits to “indemnify the United States for any and all injury, loss, or damage, including fire
suppression, the United States may suffer as a result of claims, demands, losses, or judgments
caused by the holder’s use or occupancy.”
The State of Oregon (State) contends that it is precluded from unconditionally indemnifying the
United States under Oregon law. The State claims that:

State tort law limits on liability preclude unconditional indemnity; and

State constitutional and statutory anti-deficiency provisions (prohibitions against assuming
open-ended liability or liability without appropriations) preclude unconditional indemnity.
To address the concern of the State that it cannot agree to unqualified indemnity under Oregon
law, the Forest Service has agreed to certain revisions in the standard liability clauses in special
use authorizations issued to the State and State agencies.
a. Tort Liability. Specifically, the Forest Service has agreed to condition the
indemnification provisions in the standard liability clauses solely upon limits on liability
under the State tort claims act (the Oregon Tort Claims Act or OTCA), as reflected in
revised clauses IV.D and IV.E.2 of standard form FS-2700-4.
The potential liability associated with the authorized use will be determined through a
risk assessment prepared by the State and approved by the Forest Service (clause IV.I.1).
Each use varies in terms of the amount of potential tort liability. Prior risk assessments
for the same type of use may serve as a starting point. However, each risk assessment
should take into account site-specific and use-specific factors.
The State will indemnify the United States up to the lowest liability limit under the
OTCA (clause IV.I.1).
b. Insurance as Additional Indemnity. The balance of the assessed tort liability will be
covered by an insurance policy procured by the State that names the United States as the
insured. The State may ask to include groups of authorizations under one insurance
policy.
The alternative clauses in the permit contain several provisions to effectuate reliance on
insurance to meet the indemnification requirements under the Forest Service’s
regulations.
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EFFECTIVE DATE: January 27, 2009
DURATION: This supplement is effective until superseded or removed.
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First, the revised clauses explicitly state that any limitation on the State’s liability under
State law that may apply to the authorization may not impinge upon the ability of the
United States to recover under self-insurance or a procured insurance policy. The clauses
require the self-insurance documentation and a procured insurance policy to include a
provision to that effect.
Second, the revised clauses state that a procured insurance policy may not require
liability of the State as a condition precedent to recovery by the United States.
Third, the revised clauses provide that an insurer may not deny a claim by the United
States to recover under a procured insurance policy based on the State’s sovereign
immunity, nor may the State or the insurer assert the defense of sovereign immunity in an
action by the United States to recover under a procured insurance policy. The revised
clauses require a procured insurance policy to include provisions to that effect.
Lastly, the revised clauses give the Forest Service the right to review and approve selfinsurance documentation and any procured insurance policy before the authorization is
issued.
c. Environmental Liability. There are no state law limits on environmental liability
under federal statutes, such as the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act
(RCRA), the Clean Water Act, and the Clean Air Act. Environmental liability remains
unqualified in the authorization. Further, most commercially available insurance
typically does not cover environmental liability. Therefore, environmental liability
remains unqualified in the revised liability clauses (clause IV.F).
d. Strict Liability. Many federal environmental statutes impose a strict liability
standard, i.e., liability without fault. For example, CERCLA imposes strict and joint and
several liability. As discussed above, liability limits under State law do not apply to
environmental liability under federal statutes.
In addition to strict liability that may be imposed under environmental law, alternate
clause IV.H imposes strict liability for up to $1,000,000 for injury, loss, or damage
arising in tort in connection with the authorized use. Any additional tort liability arising
in connection with the authorized use and occupancy will be determined in accordance
with the law of negligence, i.e., with regard to fault.
e. Issuance of Special Use Authorizations to the State and State Agencies. When the
State or a State agency submits a special use proposal, immediately contact the
appropriate Forest Supervisor (SO) and Regional Office (RO) Lands or Recreation
Special Uses Staff to initiate discussion with the State or State agency about this process.
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When the State or a State agency submits a special use proposal for a new or existing use,
treat it as any other special use proposal: apply initial and second-level screening criteria,
accept or deny the proposal, if an application is accepted, determine whether cost
recovery applies, and conduct any necessary environmental analysis of the proposed use.
If a decision is made to issue an authorization:
(1) The State will need to:
(a) Use the State of Oregon, Risk Management Division standard template,
complete a risk assessment specific to the proposed use;
Note: www.oregon.gov/DAS/SSD/Risk/RiskAssessmentRoadmapToolkit.shtml
(b) Provide the Forest Service with a recommendation for liability insurance
coverage, based on the risk assessment; and
Note: The Insurance Coverage Assessment used by the State of Oregon has a risk
rating system from extreme to low, a moderate risk has a standard limit of $1
million.
(c) Provide the Forest Service with documentation of sufficient procured or self
insurance.
(2) The Forest will submit to the RO:
(a) A draft authorization for the proposed use, utilizing the appropriate form with
the revised liability clauses included, unless a template for that form has already
been approved by the RO for issuance to the State and State agencies; and
(b) The risk assessment and insurance documentation.
(3) Once the RO has approved a template for a standard form containing the
revised liability clauses, that form does not need to be submitted to the RO for
approval. The RO has already developed a template for the standard forms
FS-2700-4, FS-2700-4a, and FS-2700-4b.
(3) The RO will:
(a) Review the package with the Office of the General Counsel (OGC);
(b) If necessary, revise the draft authorization and approve it;
(c) Approve or disapprove the risk assessment;
(d) Determine whether the insurance coverage is sufficient, and if not, work with
the State or State agency to make it sufficient; and
(e) Notify the Forest whether or not the authorization may be issued based on
review of the package.
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DURATION: This supplement is effective until superseded or removed.
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14.3 - Exhibit 01
ACKNOWLEDGEMENT OF RISK FORM
SAMPLE
I (we) recognize the element of risk in any adventure, sport or activity associated with the
outdoors. I (we) am (are) fully aware of the risks and dangers inherent in (activity) such as, but
not inclusive, of:
(explain risk)
Knowing the risks and dangers, I (we) understand the possible consequences of participating in
such activity are as follows:
(state consequences)
I (we) certify that I (we) have the necessary skills and ability to participate in the said activity
and assume full responsibility for myself (ourselves) for bodily injury, death and loss of personal
property and expenses thereof as a result of my (our) negligence in participating in said activity
except to the extent such damage or injury may be due to the negligence of (operator).
I (we) also agree to abide by the rules or instructions given to me (us) either verbally or in
writing by the (operator). I (we) further understand that (operator) reserves the right to refuse to
allow any person to participate who is judged to be incapable of meeting the rigors and
requirements of participating in said activity.
I (we) have read, understood, and accepted the terms and conditions stated herein and
acknowledge that this agreement shall be effective and binding upon me (us) during the entire
period of participation in the said activity.
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EFFECTIVE DATE: January 27, 2009
DURATION: This supplement is effective until superseded or removed.
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14.3 - Exhibit 02
WAIVER-OF-LIABILITY FORM
SAMPLE
As lawful consideration for being permitted by (operator) to participate in the sport of (activity),
I do hereby release from any legal liability, (operator), the United States Forest Service, and all
of their officers, members, organizations, agents and employees for any and all injury or death
caused by or resulting from my participation in the sport of (activity), whether or not such injury
or death was caused by their negligence or from any cause.
I further agree not to sue, claim against, attach the property of or prosecute (operator), the United
States Forest Service, and all of their officers, members, affiliated organizations, agents and
employees for any injury or death caused by or resulting from my participation in the sport of
(activity), whether or not such injury or death was caused by their negligence or from any other
cause.