By Tom Hubka

Wescom News Service

HARBOR, Ore. - As a bread delivery man unloaded a sack of burger buns on the counter of Fely's Cafe at the Port of Brookings Harbor Tuesday, he turned to owner Fely Johnson, who was sitting at a nearby table.

andquot;Last time I was here you told me you had worked seven straight days,andquot; he said. andquot;When was your last day off?andquot;

Johnson turned to him with a smile.

andquot;I don't close,andquot; she said.

Yet that's still the concern of Johnson and many of her customers. Earlier this year, state officials discovered the cafe was on federally restricted land, the Beachfront RV Park, and that Fely's Cafe, a private business, was in noncompliance with certain federal regulations the port must abide by.

This message came just days after Johnson and her cafe won multiple readers' choice awards for best lunch, burger and food server in late February during a contest sponsored by The Daily Triplicate and Curry Coastal Pilot.

Four months later, port officials are still trying to find a way to allow the cafe to remain open while correcting its noncompliant status with the state and federal governments.

andquot;I don't want to run them off and the port doesn't want to run them off,andquot; Port of Brookings Harbor Executive Director Dave Scott said. andquot;We're stuck in this maze of government bureaucracy, and everyone is concerned about establishing a precedent.andquot;

Johnson, whose oceanside cafe is known for its gigantic hamburgers and view of the beach, said she is unsure of what she will do if the port asks her to move her business.

andquot;I don't know,andquot; she said. andquot;I'll stay here. That's all.andquot;

Scott has been trying to convince the state that the cafe is actually within its public outdoor recreational guidelines of the regulations. The state feels differently.

andquot;My logic was Fely's provided a service to the beachgoers,andquot; Scott said, adding the cafe offered food to patrons who need food but do not want to travel to another nearby restaurant. The cafe would therefore be a andquot;concessionandquot; in the eyes of the federal regulations.

Marilyn Lippincott, senior grants project coordinator for the Oregon Department of Parks and Recreation, has worked with Scott in the months after the state found out about the cafe.

She said Scott's argument was not valid with the regulations because the restaurant was a private business on land that was supposed to be used solely for outdoor public recreation.

andquot;I confirmed that with the National Park Service,andquot; she said. andquot;They wanted (Scott) to justify why it's a concession versus a public cafe.andquot;

Curry County hosts 21 projects that have received money from the Land and Water Conservation Fund, which is the grant that implemented the rules over the RV park.

While the federal government supplies the money, the state acts as inspector and enforcer, making sure the dollars are spent according to the rules of public, outdoor use.

An option that exists for the port is a land swap. According to the fund's rules on compliance, the port would have to dedicate property andquot;of reasonably equivalent usefulness and location and of at least equal fair market value.andquot;

Scott said this was being considered, but cautiously.

andquot;I don't want to make a long-term change because the port is looking to make a master plan,andquot; he said. andquot;I don't want to make a mistake and trade something away that's going to cost us down the road.andquot;

The next step is waiting for Lippincott and a National Parks representative to visit the port and see the situation firsthand, Scott said.

But Lippincott said the final decision rests with the port, not on her trip.

andquot;I don't think that will change our minds,andquot; she said of her planned visit. andquot;Scott is either going to (swap) the property and find a replacement property or he's going to terminate the agreement.andquot;

It is unclear if Johnson will have legal recourse if she is asked to move. Scott said he was unsure, but hoped the question wouldn't have to be answered and a solution for Johnson to stay would be found.

Johnson said she didn't know if she would seek legal action.

For the moment, the port hasn't been given a deadline to make a decision, Scott said. The original deadline was July 15, and Scott said he views that date to be andquot;flexible.andquot;

Johnson said whatever happens, she would consult her andquot;familyandquot; of friends and customers, some of whom are versed in the law.

andquot;I don't want to claim this as mine,andquot; she said of her cafe. andquot;It's everybody's. I don't just snap my fingers and say, 'OK, this is what I want to do.'andquot;

And for the moment, Johnson is trying to hold on to the hope that she will be allowed to stay.

andquot;You just have to think that everything is going to be OK,andquot; she said. andquot;That's just me.andquot;