DNC Parks & Resorts at Yosemite officials quickly responded to the government's request that their claim for more than $10 million in damages tied to the loss of the Yosemite National Park concessions contract be dismissed, denying that their valuation of intellectual property was overvalued and accusing the National Park Service of "flip-flopping" when it comes to trademark issues.
On Thursday the concessionaire issued a press release "to set the record straight on a number of statements" laid out in the Justice Department's filing. Chief among them, DNC said, was that they were required to purchase the intellectual property rights from the previous concessionaire, Yosemite Park & Curry Co., back in 1993. The government maintained in its response to DNC's lawsuit filed last September that the 1993 purchase was specifically tied to YP&CC's stock, not any other assets.
While the Justice Department argued that DNC had "wildly inflated" the value of that intellectual property, the concessionaire said Thursday that it had "two independent appraisals of the intellectual property – which includes trademarked names, websites and customer databases – performed by reputable third-party experts. The valuation results of those separate appraisals are very similar. Again, it should be noted the intellectual property represented a portion of the property purchased by DNCY for $115 million in today’s dollars."
Another point of contention is whether the two parties shared the results of their respective appraisals of those intellectual property rights. The Justice Department claims that DNC provided summary valuations of the intellectual property assets "without any explanation or documentary support," while DNC claims that the Park Service failed to share its own appraisals and also refused binding arbitration to settle on a value.
"DNCY also repeatedly offered to allow NPS to meet independently with DNCY’s appraisers so NPS would understand the appraisal methodologies. NPS refused," the concessionaire said.
DNC also took exception with the Justice Department's description of its parent company's business model. The government stated that Delaware North seeks to bolster its bottom line by securing trademarks to iconic U.S.-owned properties, and pointed to an example from the Kennedy Space Center. But DNC said it was required under its contract with NASA to obtain a trademark for "Space Shuttle Atlantis" to maintain the intellectual property for NASA. If another concessionaire is hired, the trademarks "will be handed over to the next steward of the visitor complex at the end of the contract," wrote DNC.
Yosemite's new concessionaire, a subsidiary of Aramark Leisure, is to take over on March 1. While the Park Service has left open the option for Aramark to change the names of the buildings at Yosemite to which DNC claims trademark rights, DNC officials said they hope "NPS and the new concessionaire will not change the names of historic places or venues at Yosemite National Park."
"We purchased these trademarks when we commenced our work in 1993, as required by our contract with NPS, and our only interest is selling them on to the new concessionaire for fair value, a requirement NPS is obligated to enforce," the concessionaire said. "While this disagreement is ongoing we have even offered to license these trademarks, free of any charge, to NPS to avoid any name changes or impact on the park visitor experience."
Comments
Agreed, David, if the parks were private property. But they aren't. The property owner has never changed. It has always been the federal government--which alone had the power to make treaties with the Indians allowing the "transfer" of parklands.
Even in the private sector, leases are in no way ownership. My tenant has a lease. For now, she can name my house whatever she wants, but when she moves, that is the end of her lease--and name. You don't get to name my house and ask for compensation. Oh, but I picked a better name!
Delaware North didn't even pick the names. They inherited them from the previous concessionaire, which itself is wrong again. They inherited them from Yosemite, the Place, a place that belongs to no one who simply holds a lease.
Bureaucrats. Tney get in office and start trying to justify their existence knowing not a fig about what they manage. The seasonals in Yosemite will tell you what they manage. They manage a NATIONAL PARK.
No, like the owners before us, it was taken by conquest. Fortunately, we now operate under a Constitution (at least some of us) and under that document it can't be taken by force without just compensation.
You argue DNC is coercing the government into given up the names. DNC is actually claiming they already bought them when they initially won the franchise. I don't know if that is true or not. But either way, that should have been spelled out in this and every other concession agreement.
Exactly, Anonymous. Delaware North is claiming the right to own something it never had the right to own. Nor did the government have the right to sell it. You say DNC "won" the franchise. Better said, the franchise was awarded by competitive bid. If in 1993 Delaware North had pulled this trick, no way would that have been a competitive bid. You want $51 million at the end? The people will wait for a better deal.
At least, that is what history insists the Park Service should have said. If you want to own any part of the peoples' parks, we will no longer accept your bids.
In these pages not long ago, I was criticized by some for having defended the railroads as friends of America's national parks. Now you see what I mean. There was an elegance to that earlier America, even from what most historians still describe as robber barons. Who were the real robber barons? Those that would not relent in their quest for profits, no matter what the people owned.
Intellectual property? We all know what that is--something you created by yourself. DNC created none of the value in Yosemite. Every signifcant value was pre-existing and entirely the peoples' doing. Try getting $500 a night for The Ahwahnee Hotel in Fargo, North Dakota. Well, with the oil boom you just might get it, but no one would go to Fargo looking for The Ahwahnee Hotel.
Somewhere, John Muir would probably add that Yosemite is God's creation. For 240 years, this nation has said "In God We Trust." There is the true intellectual property behind Yosemite, and it is time we all got back to that. We have a nation to build--and a nation to keep. And we will not do it by insisting that the peoples' treasures are something anyone gets to own. Manage them? Profit from them? Fine. But the profit must be an honest profit--not something as manipulative as trademarking the peoples' names.
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So you claim. They claim they bought it when they first got the concession. On what basis do you claim they "never had the right to own". If they paid the NPS or the prior concessionaire for those assets, they clearly had the right to own or were fraudently charged in the first place. Either way, they deserve compensation.
That would be fine, if they said it at the time or put it in the contract. They didn't. They can't claim it now if it wasn't in the contract.
There are plenty of places outside a National Park where hotel's fetch $500 a night. Should we claim that the Plaza Hotel has no rights to its name because if it were in Fargo ND, it wouldn't be worth anything? You sound like Obama with "you didn't build that".
If DNC paid the NPS or prior concessionaire for the names, they deserve to be compensated on releasing them.
Alfred, As a NP owner, when can we count on you to pick up the trash, make the beds in the lodges and flip the burgers for my grandchildren? Certainly you don't expect the work to be performed by our "efficient" Federal employess. Yes it was the greedy concesseionaires that took the financial risks of putting in place an infrastructure that has allowed record numbers of visitors to enjoy thier visits to the NPs that you own.
I think this short article explains LSI and how it applies;
https://www.smithcurrie.com/resources-news-64.html
And this one shows how a contract for Yellowstone has changed LSI to an advantage for the parks back in 2012. They actually spelled out a depriciation schedule for LSI;
http://www.lexology.com/library/detail.aspx?g=2cedb1da-c1bd-4928-91c2-ab...
Ah, yes, those sacred "contracts." But how about the law? I am not debating with you that the Park Service screwed up here, because yes, it most certainly did. It didn't read the law enumerating that only leases could be granted for the public's lands. When I was in Yosemite, I watched the Park Service cave, starting with rafting on the Merced River. One of the seasonal rangers started that as a public service; within a year, MCA had commercialized the entire thing. How did that get "added" to the contract? Good question. Let's ask Bob Binneweis, who now writes about Yosemite in jeopardy. As superintendent, why didn't he see the "jeopardy" then? The concessionaire was paying a piddling three quarters of one percent--and getting the park handed to it on a platter.
Delaware North was the next platter. No one is arguing here that concessionaires don't perform a service. They do. You know me. I love what the railroads did for the national parks. I love the great lodges as much as anyone. But here is the difference between then and now. In the first place, the profit center for the railroads was the trains themselves--added passengers every summer. At best the hotels and lodges broke even, for after all, the season was just 90 days. Today, all of that has been turned around. Now the parks themselves are the profit center, and the concessionaires hound the Park Service for "extras" every moment.
Consequently, a whole bureaucracy has built up around concessions management, where once the Park Service was managing the parks. Who gets to "manage" the concessions? Not $500 an hour lawyers, to be sure. But that is what the concessionaires throw at the Park Service--from the director of the agency right on down. In Yosemite, Bob Binneweis was making $60,000 a year while his counterpart at MCA made $400,000. Say no to him and his battery of lawyers? Yeah, right.
The cliches abound. Let's create a "level playing field." Yes, let's do that just for once. The railroads had taste; these people have no taste. The only thing they taste is money.
On your death bed, tell me how much that matters. I had more money than you. In the national parks, can we not cease and desist from talking about the "contract" all the time?
Taste. Delaware North doesn't have it. Xanterra itself came pretty close to losing it. They started the trademarking scam as well. It's time to end this Guilded Age we're in and get back to having taste.
Edward H. Harriman I would like to have met. John Muir cried when that "robber baron" died. Here is the euology Muir then wrote: "He [Harriman] fairly reveled in heavy dynamical work and went about it naturally and unweariedly like glaciers making landscapes--cutting canyons through ridges, carrying off hills, laying rails and bridges over lakes and rivers, mountains and plains, making the Nation's way straight and smooth and safe, bringing everybody nearer to one another. He seemed to regard the whole continent as his farm and all the people as partners, stirring millions of workers into useful action, plowing, sowing, irrigating, mining, building cities and factories, farms and homes. . . Fortunes grew along his railroads like natural fruit."
Why could John Muir respect Edward H. Harriman? Because Harriman knew and respected what he had no right to own--or change. For the past 50 years, at least, this new breed of contract-thumping corporate executives have lost sight of that. Fine. Let' all be capitalists, but let's keep our stock-picking mitts off the national parks. Say what? It says in the contract you are owed intellectual property? Okay. How about we agree on this. We pay you this once, and never again do we wish to see you darken the public's door.