Arizona Court Order Could Hobble Recreation Access Fee Policy

By Bill Schneider, 9-13-06

"It's a victory," proclaims Robert Funkhouser, president of the Western Slope No-Fee Coalition, the lead group fighting the movement by federal agencies to charge fees for recreational access, "but how big of a victory?"

Funkhouser is trumpeting the September 5 decision of the Arizona federal district court where Judge Charles R. Pyle dismissed tickets issued to Christine Wallace by a FS ranger and said the FS was overstepping the authority granted the agency in the Federal Lands Recreational Enhancement Act (FLREA), which is called the RAT (Recreation Access Tax) by critics.

The actual impact of the court order is yet to be determined, but Funkhouser is confident "it has national implications." The judge ruled that the FS has been illegally implementing FLREA, he points out. "This is the only court ruling on this issue, so it will hold heavy legal precedent. Clearly, Congress intended to limit the Forest Service's ability to charge these fees for using public lands."

Funkhouser also invited people to his organization's website where he has posted the entire 23-page court order.

The FS could appeal the decision to a higher court, which may delay implementation.

Briefly, a FS employee issued Christine Wallace a citation for parking along the Catalina Highway and going for a day hike in the Coronado National Forest near Tucson. She received another citation a week later. She refused to pay the tickets, and the FS took her to court, a decision the agency would probably like to take back now. The Catalina Highway goes to the summit of the Mount Lemmon, only an hour's drive from downtown Tucson and heavily used by local residents. Several years ago, the FS designated the area as the Mount Lemmon High Impact Recreation Area (HIRA) and started charging $5 per vehicle to enter the area unless people drove straight through without stopping to hike, picnic or otherwise use their public land.

Judge Pyle went to great length to detail the chronology leading to the current FS policy of charging the fees Wallace refused to pay, but concluded there was no basis in law for the federal agency to assess the fee or cite her for not paying it.

FS officials tried to convince the judge that they weren't charging Wallace a fee "solely for parking" but for "use of a recreation area." In other words, the government was arguing, the judge noted in the court order, that Wallace could park her car as long as she did not get out of it to breath the fresh air. He dismissed this argument.

"Clearly Congress intended that the public have free access to undeveloped federal lands for purpose of recreation, including hiking," Judge Pyle wrote. "There is no authorization to charge a fee for using a trail; and charging for trailside parking is prohibited." He also said FS actions, including posting of signs, "was far beyond its legislative authority."

Accordingly, the judge dismissed the case and gave opponents of current fee-charging policies a major win.

It's still unclear how the FS will react to the court order. Paula Nelson, information officer at the Northern Region office in Missoula had not seen the decision yet, so had no comment.

Dan Jiron, national press officer for the FS in Washington, D.C. said, "Typically, we do not comment on current court cases for a variety of reasons while we are determining our next steps."

As with most court decisions, interpretations are bound to differ. The FS is obviously not ready with its interpretation, but Funkhouser is. He believes the Wallace decision prevents the FS from charging for parking along roads to use national forest land for hiking, picnicking, climbing and other recreational activities that don't require developed facilities and, perhaps more significant, from charging to park at developed trailheads, which is now a common practice in the Pacific Northwest and other FS regions.

Correction: There was an unfortunate omission in this article. Lynn Scarlett and Mark Rey were not at the Arizona court hearing to testify. Instead, the article should have said that these two government officials testified at an earlier hearing of the implementation of FLREA before the Senate Forest and Public Lands Subcommittee chaired by Senator Larry Craig (R-Idaho). This part of the article was inadvertently omitted. Also, Lynn Scarlett informed us that we incorrectly identified her as Assistant Secretary of the Interior. She was promoted to Deputy Secretary of the Department of the Interior in November 2005. We apologize for these errors, and the article has been corrected...Bill Schneider
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