AGENCY SLAPPED DOWN AGAIN BY FEDERAL JUDGE
Earth to Forest Service: Recreation Fee Program Is Still Illegal
Now that another court has told the USFS that creating High Impact Recreation Areas is an illegal interpretation of the federal law, will the agency get the message or keep appealing until the federal legal machine prevails?By Bill Schneider, 9-29-10
Photo courtesy of the Western Slope No-Fee Coalition
Since December 2004 when the Bush Administration talked Congress into tacking the Federal Lands Recreation Enhancement Act (FLREA) onto a must-pass budget bill as a dreaded “midnight rider” and made it the law of the land without public debate or congressional vote, it has been more than controversial. The Forest Service (FS) immediately started illegally interpreting the law as a license to charge the public entrance fees to drive, walk or ride a bike into National Forests and to park along state highways passing though federal land.
Citizens protesting the illegal policy have won court cases in the past (click here for details), but in every case, the FS reacted by appealing with the full force of the federal legal machine until it prevailed over volunteers hoping for a little justice.
Perhaps the most serious violation of the law, if not public responsibility, has been the creation of nearly a hundred High Impact Recreation Areas (HIRAs) throughout the National Forest System. What the FS did, in essence, was select the most prized recreation areas, public land most heavily used by the public, and drew lines around them, put up signs requiring fees and toll booths and hundreds of “iron rangers” to collect the money, and made it illegal for the public to drive, bike, hunt, fish, or hike on millions of acres of public land--or even park for a few minutes to enjoy the scenery along a state highway passing through a HIRA. FLREA--called RAT, Recreation Access Tax, by detractors--specifically prohibits all this, but the FS apparently ignored that legal language because it did not fit the plan.
Perhaps the latest court decision will finally make a difference.
On September 14, Federal Magistrate Judge Mark Aspey in Flagstaff, Arizona granted a motion by Sedona resident Jim Smith to have his ticket for failure to pay a FS recreation fee dismissed.
Heaven forbid! Smith had parked overnight at the Vultee Arch Trailhead in the Red Rocks HIRA in the Coconino National Forest. He parked in a dirt parking lot with no “amenities” (picnic tables, toilets, etc.) at end of a dirt access road. Then, he hiked into a remote campsite, also with no “amenities,” stayed overnight, and returned to find a ticket on his vehicle because it did not display a Red Rock Pass.
The Red Rock Pass fee program is among the most outrageous in the nation. It requires an access fee to enter a huge tract (160,000 acres) of federal land, much of it undeveloped backcountry.
Instead of paying the fine, Jim challenged the FS’s authority to levy this fee for a reason obvious to anybody who has read FLREA. The law specifically prohibits fees for parking, general access, walking through federal land without using facilities and services, camping in dispersed undeveloped areas, or in any location that does not offer reasonable access to six specific amenities, which are listed in the law, as “permanent toilet, permanent trash container, picnic table, developed parking, interpretive signage, and security services.”
The Vultee Arch Trailhead offers none of these amenities; it’s only a dirt parking lot where you leave your vehicle to go hiking. And the law says both the parking and the hiking must free of charge. The nearest toilet, incidentally, is seven miles away, ten miles to the nearest garbage can.
All facts conveniently and illegally ignored by the Forest Service for years.
I’ve never met Jim Smith, but I already admire him. Like so many of us, he couldn’t afford a pricey lawyer, so he represented himself against the full might of the federal government--and won! (Click here to read his own version of the event in a guest column he wrote for NewWest.Net.)
The judge not only bought Jim’s presentation, but in his decision, he also called the FS’s interpretation of FLREA “absurd.” (Click here to read the entire decision,)
“This is a very important decision with national implications,” noted Kitty Benzar, executive director of the Western Slope No-Fee Coalition, the primary nonprofit group fighting the FS on its illegal fee program, in a press release. “Within a HIRA they (the FS) have been claiming the authority to charge a fee for any activity at all as long as the six amenities exist somewhere in the HIRA, no matter how scattered or how far away. This interpretation has resulted in visitors being charged fees to access millions of acres of dispersed undeveloped backcountry.”
And Judge Aspey agrees. Hopefully, in his decision, he finally sent a message to all National Forests that they can forget about prosecuting somebody for simply obeying the law by not paying a fee for parking at a trailhead and taking a hike on their own land.
Regrettably, though, the Coconino National Forest has not taken those signs down since the decision and continues to charge the fee, typical to the agency’s callous disregard for the law.
Back in 1996, the camel poked its nose under the tent when the Clinton administration allowed the FS to experiment with fee charging. At the time, it was called the “fee-demo program.” Then, the Bush administration made it full-scale madness by ramming FLREA down our throats with no chance to even protest it and gave the FS full reign to aggressively implement it, which the agency quickly did. Now, it’s up to the Obama administration to step in and stop the insanity. Instead of appealing the Smith decision, hopefully somebody in the White House can make a call to the FS bosses and tell them to just disband the HIRAs and obey the law--or better yet, repeal it.
Footnote: Senators Max Baucus (D-MT) and Mike Crapo (R-ID) have introduced a bill (S. 868) to repeal FLREA, but Congress has taken no action on the bill. After introduction, Senator Jon Tester (D-MT) jointed as a co-sponsor. Click here for more details.
To read NewWest.Net’s extensive coverage of the recreation fee issue, click here.
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Since the time of the Clinton administration the US Forest Service has received budget increases to the tune of three times the rate of inflation. Nonetheless they keep screaming "we're broke," and demanding more. The charging of public lands access fees -their power to implement direct taxation with very little oversight- is nothing but deception if not pure extortion.
Anyway, good decision on the part of the Arizona judge. Maybe we will now actually see some "change."
thank you for the update on this issue. the forest service is trying to show the economic value of recreation, yet another strategy to keep its overhead accounts full (the wildfire fighting program is another one). if they can demonstrate a revenue stream from recreation, they can get more money to put in more parking lots and outhouses and picnic tables.
personally, i don't want any of those amenities on the national forests, except in a designated campground. i consider them a degradation of a public resource.
Gag me. Our public lands were not set aside for the private profit of either corporations or government agencies. I have nothing against profit in the private sector, but public lands are not the private sector.
Thank you Judge Aspey for holding the Forest Service to the letter of the law, and declaring their interpretation and enforcement to be "ultra vires" - a wonderful latin phrase that means "You're busted!"
The USFS has gone completely off the rails and over the cliff of common sense with it's oppressive and heavy-handed fee campaign. The American Recreation using public is being severely DISENFRANCHISED ---and they have had a big bellyful of this nonsense. Fees are simply a social and economic DISASTER. They specifically target low income and ethnic groups. Visitation to the National Forests is drastically down precisely because citizens cannot afford --or refuse to pay on principle-- the "fees." The "High Impact Recreation Areas" (HIRA's) whereby USFS draws a grease pencil line encompassing a couple hundred thousand backcountry acres on a Map and then says it is an "instantfee site" is UNCONSCIONABLE beyond comprehension. The backcountry and dispersed National Forest lands and waters are our COMMONS. It is our PUBLIC land. They are NOT to be commodified and privatized by an out-of-control agency seeking to maintain it's bureacratic empire by fleecing the public!! Appropriated recreation funding from Congress to USFS actually increased approximately 13% from 2002 to 2009. Yet the agency cries "woe is me" - we have no recreation money. I buy none of it. The money is being bled off at the top of the bureaucratic pyramid and not getting down to the ground -i.e. The Ranger District level. Remember please that this is the same uncaring agency that with the "left hand" is trying to sneak by inappropriate commercial timber sales which clearly violate NEPA and the Endangered Species Act and then wonders why they lose court case after court case. Millions of taxpayer dollars are wasted. Then the "right hand" of the octopus wants to grab the outdoor recreation tourists by the heels and roughly shake them till every spare $$$ falls out of their pockets! The USFS has a terrible record of internal financial mismangement over the last couple decades. It's a giant DISCONNECT. Simplly connect the dots and you find arrogance and hypocrisy. The whole fee debacle is one dismal TRAIN WRECK.
I urge citizens across the Nation to tell the USFS loud and clear that they will have NO MORE of this travesty. As a retired USFS professional in Outdoor Recreation Management and deeply concerned taxpayer I urge you to contact your Senators and Representatives and demand immediate repeal of the Federal Lands Recreation Enhancement Act. (FLREA) Once again, hat's off to Bill for shining the bright light of common sense and justice on a terrible situation that is screaming for Congressional reform.
For further excellent information on the FEE MESS please go to http://www.westernslopenofee.org Please stand up and be counted.
Scott Phillips, Hailey, Idaho
You hit the nail on the head when you wrote, "What the FS did, in essence, was select the most prized recreation areas, public land most heavily used by the public, and drew lines around them, put up signs requiring fees..."
Starting with F. Dale Robertson (Chief of the USFS from 1987 - 1993), a prime object of that agency has been to curtail the public's right to recreate on the National Forests while creating product-lines of recreational goods and services to be sold to paying customers.
Every Administration since that of Jimmy Carter has supported this objective. And so yes, Clinton is culpable, as are both Bushes, Reagan and perhaps Obama (though he not yet made his position known). However, the fact remains that Congress (in passing FLREA) did not give the Forest Service carte blanc authority to shake down forest users. To the contrary, in passing FLREA Congress took pains to deny the Forest Service this ability and to protect citizens from the excesses of potentially greedy or over-zealous land managers.
What the Forest Service did in putting up signs and erecting fee turnstiles violates the law. That is what Judge Aspey ruled and that is what anyone with a whiff of integrity or common sense would conclude if presented with the facts. That said, the Forest Service is lacking in both integrity and common sense. More to the point, the Forest Service has for over two decades been on a mission. It needs the ability to charge and retain the widest possible range of user-paid recreation fees if it is to accomplish the privatization / commercialization goals originally set forth by Chief Robertson.
Neither the Congress nor any President has given them such authority and Judge Aspey has correctly slapped them for having usurped it without basis. What remains to be seen is whether the Forest Service will now play by the rules or continue to act as if laws do not apply to them.
Not surprisingly, recreation fees are having a similar impact on visitation to our national forests which have dropped by 37% in Washington and Oregon, 42% in the NE region of the US, and 74% in Alaska since the fee program began. That level of visitation decline could have a terrible impact on both local families and the local economy as fewer people attempt to visit forest and wilderness areas and their surrounding communities. As people increasingly have to weigh the cost of basic staple items against paying recreation fees, food and fuel will win. But the small towns and communities surrounding our national forests will lose important visitation dollars in the process.
BTW, everyone should see the motor pool at the FS ranger station here in Sedona. It's car & truck dealer's dream!
Too bad the major NEWS media can't/won't tell the story.
Baucus and Tester will hop on any Bill that will make them look like they care about Montana. They are NOT the favorite sons of Mointana.
The more constructive question to ask, is why the Forest Service doesn't ask Congress for more recreation funding? If they did, they would have to ask for less funding in other resource programs like fire, fuels, wildlife, etc.
But since they don't seem to want to ask for more recreation funding then instead of attacking the Forest Service, (which won't get you anywhere) why don't you start demanding that Congress allocate more of the Forest Service budget to recreation. Then they wouldn't have a reason to have to charge fees.
For what it's worth, I agree. The real problem is recreation funding, and as you point out, fee income is a small slice of the pie. That has been my exact point in earlier commentaries, where I have said forget the hassle and controversy associated with collecting fees, which are such a small amount, and go back to the "old way" of funding recreation through the normal budget process. If you want to read some of those ideas, click on the link at the end of the above column.
So why is this even a problem? Well, some people believe that the fee program is just part of an overall effort to privatize public lands, which is why they keep doing it, even though it's always controversial, if not illegal. The FS has taken great license, to be kind, with FLREA, and it goes against the spirit of the law and the lawmakers who let it happen.
Recreation funding, incidentally, has increased in the FS budget in recent years, just not quite enough to make it possible for the agency to spike the fee program.
And nobody I know blames the FS employees for doing what they've been directed to do. In many cases, they have to collect fees to pay for basic recreation services, if not their own salaries. I have to think this is by design from the FS bosses back in the Old Auditor's Building.
Anyway, sorry to run on, and thanks for the comment.
Bill
I dislike the high price of access as much as anyone, but it is a good indicator that our past funding system just isn't there anymore.
http://www.fs.fed.us/r3/coconino/news/2010/2010-10-01-red-rock-fees.shtml
The Forest Service promises to take the matter of Red Rock fees up with the FLREA advisory committee (which in this case is actually a BLM committee). But, as the court noted, the FS has made and broken this promise before. Net effect -- the court's decision appears to have had no effect whatsoever on the Coconino's behavior.
Perhaps the Coconino is no longer writing citations if you don't have a Red Rock pass? Who knows . . . the FS will surely not comment one way or the other (it's a law enforcement matter).
I like the idea of charging people to use the great outdoors. Just like ranchers have to pay to graze livestock people should pay to hike the trails, use facilites, and be cleaned up afterwards. I like the idea of making climbers by an insurance policy before they climb Mt Hood to reimburse the State when they have to rescue some fool injured, caught in a storm or lost.
Wear a pedometer, you can pay by the mile.
My wife and I hike all the time here. We're hard pressed to find so much as a cigarette butt on the ground because, for the most part, people go out on the trails to hike, not litter. And there are also plenty of people like us who pick up whatever litter might be around.
Litter can be a problem on some of the back roads where contractors and landscapers dump illegally. That is a different issue entirely and has nothing to do with recreational users.
The point is, there is no correlation between recreational forest use in undeveloped areas and fees, as much as the FS would like you to think there is.
The point is, the FS is a wasteful federal bureaucracy that just wants more control, more money and more employees like every other federal bureaucracy.
Like I said in my previous post, you should see their motor pool here. It's a car and truck dealer's dream come true.
Every year the FS budget increases at way above the rate of inflation yet they keep crying poor.
Additionally, God help anyone who thinks they need to pay the government more for anything, or work to enjoy what is already ours and what we have already been paying for our entire lives.
I can't imagine how anyone avoids taxes, even old & retired I have to pay taxes on every nickle I take out of my IRAs...and I put it in there in the first place.