VISIONS OF 1984, BIG BROTHERISM GONE AMUCK
Vilsack, Ease Off on RAT Litigation
If you've ever wondered how the federal government gets away with the things it gets away with, read this.By Bill Schneider, 5-14-09
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| The sign at the overlook on top of Mount Evans, Mary Ellen Barilotti, and the mountaintop parking area and overlook. Photos courtesy of the Western Slope No-Fee Coalition. | |
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Finding somebody who isn’t happy with the federal government is easy. Finding somebody who will volunteer most of his or her life to doing something about it is extremely difficult.
One such person is Mary Ellen Barilotti.
Retired from the Santa Barbara, California, county attorney’s office and now living in Hood River, Oregon. Barilotti has been fighting on behalf of a small nonprofit group called the Western Slope No-Fee Coalition (WSNFC) against the illegal and abusive implementation of the Federal Lands Recreation Enhancement Act (FLREA) or Recreation Access Tax (RAT) to its many critics.
Ground zero for the fight against the RAT is Mount Evans in Colorado. I’ve already written extensively about the Mount Evans situation (links at end of this column). I’ve even been one of the victims, having been turned away while trying to pedal my bicycle up to Mount Evans, but finally relenting and paying the $3.00 toll for permission to ride on a state highway through federal land.
“We’ve made Mount Evans a poster child for what’s wrong with the fee program,” agrees Kitty Benzar, President of the WSNFC, “It’s the place they (Forest Service chiefs) have obviously decided to make their stand.”
“The thing I would emphasize about this is the immense amount of government legal energy that is being expended in trying to defend the indefensible,” Benzar told NewWest.Net in an email. “The Forest Service (FS) is so clearly in violation of the fee prohibitions in the FLREA at Mount Evans, but for citizens to get their day in court to prove that, there is a wall of Justice Department attorneys standing in the way. The story of all these attorneys vs. Mary Ellen Barilotti, a retired county attorney working alone and pro bono, is a real David-and-Goliath saga.”
“We are essentially arguing that they don’t have the power to charge fees where they are charging,” Barilotti explained to NewWest.Net in a phone interview. “We think the law means something.”
Any legal challenge to any policy of a federal agency automatically and regrettably, it seems, means a big fight with Big Brother, and the main strategy for federal lawyers is not winning in court, but instead making sure the public’s voice is never heard.
And a nasty, infuriating strategy it is, to say the least, but sadly, it usually works.
“We haven’t had a day in court yet,” Barilotti admitted. “The government doesn’t want the merits of the case to be heard. A lot of briefs have been written about why we don’t have standing. For a year now, it has been all about standing and that we don’t have a right to sue.”
She went through the incredible about of time and work that has gone into the legal battle so far, none of it about the merits of the case, only timely and expensive legal maneuvering to prevent daylight from exposing this injustice. I’ll spare you those complicated details, but Barilotti is optimistic the court has started leaning towards allowing the public voice to be heard. “The judge is now saying we may be able to establish a basis to be in court.”
How bad is this? A retired attorney working pro bono has to devote her life to fighting a gang of Justice Department lawyers (salaries paid with tax dollars) just to have a day in court to represent the American people. Doesn’t exactly sound like Equal Justice Under the Law, even though those words are still engraved above the front door of the U.S. Supreme Court building.
Barilotti filed the first court documents a year ago, May 5, 2008, and since then she has already burned up “thousands of hours” of time and expects this case to take at least another year. She sends her briefs and other documents to three federal attorneys and then they email them to others. “The government is constantly asking for more time and to spread it out,” she explains.
I’d like to dig deep into the details of the case, but it’s too long and complicated for this forum. If interested in those details, click here for relevant documents. There is, however, one embarrassment I can’t resist exposing.
If you go here, you’ll see a court exhibit where Paul Cruz, a FS recreation manager, swears under oath that there are “no developed scenic pullouts or overlooks along the road leading up Mount Evans,” even though hundreds of thousands of people who have gone there would quickly disagree. In fact, the overlook on top of Mount Evans (see photo) is probably the most scenic of them all. Cruz had to say that because FLREA specifically disallows charging for overlooks, which the FS is obviously doing on Mount Evans.
When our elected representatives silently slipped FLREA into the law books back in December 2004 as a rider on a must-pass spending bill, some members of Congress were at least concerned enough about potential abuses that they inserted restrictions into the law to prevent federal agencies from charging for access to federal lands, for driving through them, for parking along a road or for simply using federal land for hiking, birding, bicycling, climbing and other outdoor activities. Lawmakers retained the option of charging for developed “amenities” like campgrounds, picnic areas and visitor centers, but nobody, including WSNFC, has any problems with charging a reasonable fee to use a campground or visitor center, but Barilotti and Benzar believe charging people to drive on a public road through national forest land or to stop to view the scenery is blatantly illegal.
Yet, that is exactly what the FS is doing on Mount Evans and many other places.
In a transparent attempt to usurp the will of Congress, on Mount Evans and 97 more of our most popular and scenic public places, the FS created what the agency calls High Impact Recreation Areas (HIRAs) to sidestep the law. Like the process of “passing” FLREA in the first place, the process of creating HIRAs was behind the scenes without any meaningful public input, let alone a congressional vote.
Barilotti and WSNFC are arguing the obvious. The FLREA prohibited the FS from charging for driving into and parking along public roads through public land, but the FS is doing it anyway by charging a fee to enter the HIRA.
Here’s how it goes. At Mount Evans, you must stop at the FS toll booth in the middle of State Highway 3. The attendant doesn’t attempt to explain the law. Instead, he or she just asks for the fee. In the same court document cited above, Cruz says if a traveler “states that he or she is not stopping within the HIRA other than to take a photo at a pull-out or simply take in the view,” the FS won’t charge the fee.
So, according to Cruz, people can drive up to Mount Evans and stop at pull-outs, take pictures, and enjoy the view, without paying the fee, but the sign at the toll booth states TRAVEL NON-STOP ON ROAD NO CHARGE.
And then there’s the sign that says PARKED VEHICLES MUST DISPLAY VALID RECREATION PASS.
The end result of the agency’s intentionally misleading approach is, as you can expect, almost everybody pays the fee.
Incidentally, the same issue came up two years ago on Mount Lemon in Arizona, and Barilotti handled that case too, defending Christine Wallace for not paying two tickets she received for using her land without paying, one for parking her car along the road so she could take a hike. This case made it to court, and on the verge of losing this landmark case, the FS dismissed one of the two tickets, the one for parking that could have caused the entire fee program to come crashing down around them.
Based on such responses to litigation from the FS, it’s easy to see why Benzar and others who know the law consider the government’s position “indefensible,” and the FS obviously agrees, which is why the agency has thrown the full force of the federal government at a retired volunteer to make sure the case is never heard. Does that make you see red?
Government agencies facing citizen opposition do this all the time. Government bosses and their lawyers know that volunteerism has limits, so if they make it tough, drag it out, make it expensive, make it frustrating, well, pretty soon, we’ll just give up, right?
Unfortunately, yes, most of the time, we do.
Neither Barilotti nor Benzar have any indications that the Obama administration plans to re-direct this Bush administration decision to drag out a mean-spirited fight on fee litigation, and that seems strange to me. For starters, Obama appointed Ken Salazar as Secretary of the Interior, and last year, Salazar was one of the four western senators to sponsor a bill to repeal FLREA.
But the FS is not in the Interior Department. It’s a step-child in the Department of Agriculture, now directed by Tom Vilsack.
This case is a leftover from the policy of commercialization and privatization of federal lands so aggressively implemented by the Bush administration, and its top gunslinger, Mark Rey, who has been characterized as Public Lands Enemy No. 1. Just last week, Vilsack appointed Homer Lee Wilkes, a relative unknown from Mississippi, to fill Rey’s position. As I write this, Wilkes is awaiting confirmation, so Vilsack is probably waiting for him to get his feet on the ground before taking up this issue.
That’s fair enough, but in the meantime, Secretary Vilsack, call off the legal guard dogs and agree to let citizens have a day in court. Does that sound unreasonable?
RELATED ARTICLES:
Baucus, Crapo Re-introduce RAT Repeal
Arizona Court Could Hobble Recreation Fee Policy
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Comments
Of course, I am subjecting myself to a lot of name calling, but the vaunted USFS recreation program was paid for by timber sale revenues for three quarters of a century. When the NGOs of the Environment set up shop to end that, on behalf of Big Timber who had cut out their wood. They were precluded from bidding on USFS/BLM wood by the SBA Timber Sales Set Aside for small business. Big Timber used the Green NGO route to stop all USFS and BLM timber sales possible, to gain economic advantage for them and the MegaPulps in the market. Trust money runs where the Trustees want it to, and I can put my money in your cause and you can put your money in my cause, and the public need not ever know. Golf course deals. Fat Cat networking. That plan has now gone awry due to cheap Canadian timber, provided by Crown lands on long term leases with favorable market adjustments to stumpage pricing. Now MegaPulps in the US can't make quarterly profits, and are hell bent to TIMO and REIT tax avoidance, and stock holder short term gains. What a mess!!!!
So, the RAT is a little animal created as an offshoot of the need to finance recreation now that timber is off the table for the foreseeable future. Live with it. It is your baby, your animal. RAT is the unavoidable answer to a severed financial artery. That artery was cut by choice. Unintended consequences like an ever diminishing budget in 1980 dollars, are real and to be expected. Due diligence and a longer term outlook on how to finance rural economies and Federal land caretaking were not in place. RAT is an expected result. The last chance to keep the doors open. Kill RAT and you have closed campgrounds, leave roads without maintenance (I once paved the road to the top of Mary's Peak in the Siuslaw NF as part of a timber sale road reconstruction contract item---paving being long term cheaper to maintain than gravel---of course the timber paid for it), and a reduction in the number of people willing to sell you a map or a permit in the Ranger Station.
The timber sale program had timber buyers doing all sorts of construction that did not have to go through the budget process in Congress. The way that works, each level of administration takes a chunk of the revenue for administrative costs. Something that could be done for $1000 has to have admin costs added...let's say 10%....so it is a $1100 job at RD, $1210 at the SO level, and $1331 at the Region. The Chief's Office will want 30%, so that makes it $1730.30 for the budget number. If USDA needs a share, then it becomes pretty much a deal where a one dollar project needs a budget item of $2....Government needs as much to administer as the project costs on the ground. Now can you see the fat in RAT? Congress tries to pass laws that let money generated on the RD stay in the RD...but you know the SO and Regional will find a way to take some of it. Government by government for government...we are there.
Someone out there has to say that the USFS is a social engineering arm of the government. They are about how their workers interact and get along in their workplace. It is not about getting a job done managing resources. It is about managing people. It is the crucible, the workshop, for how to do the Orwellian job of people management. It has been used as a US Govt model with which to alter the workplace of government for government, by government. Their concerns are lofty social goals, and if any work ever got done, it is a bonus. They are not, you know, greedy profit driven private sector thieves. When they need more money, they go to Congress to give them more, and to the people to charge them for their use of public property. Double taxation is not new, but it is going to be more widespread than we ever dreamed. Still want to buy a car from GMC now that it will be 99% owned by the US Govt and the United Autoworkers? You think they will be consumer driven? Laughable. Truly laughable. $1 a share stock and falling. The plan is to have a reverse stock split in the end: they take your 10 shares and give you back 1. Makes sense.
The USFS is the outfit that signed a consent decree (threw in the towel--white flag of conditional surrender) in Region 5 long ago (in response to a '70s lawsuit--settled in early '80s), that said the USFS had to be a mirror image of the local population in gender, race, ethnicity, sexual orientation, physical abilities, mental abilities. When the next census comes out, there will be numbers assembled, and hiring in each Region will be adjusted to meet not the skill needs of the agency, but the gender, ethnicity, sexual orientation, physical abilities, mental abilities, of the work force for the next decade. Education and skill is way down the list of desirable characteristics in hiring. If you don't fit in the open blanks, someone who does with lesser education and skills will get the job. The Public has to know that, understand that, to know why they seem to be at odds with how that agency operates as to time, work loads, and getting anything done.
When timber was a driving force, there was a professional goal to meet, that of the timber sold for the year, and that created a demand for qualified individuals. GI Bill educated young men who had spent their time in Viet Nam had preference due to civil service hiring rules. Not any more. Your service in Iraq or Afghanistan don't mean much. The USFS/BLM have those other goals to meet. There is no tangible goal for an outfit that is fighting fire by letting fire burn, letting roads go to hell because they have no money to repair them, but millions to "de-commission" them. Have you ever figured out how much new dirt has to be moved to de-commission a road, how much new erosion will occur? The recreation money is being spent on road obliteration, not campground and road maintenance. This is the "destroy the forest to save the forest" VietNam strategy. Been there, done that. Didn't work. But for the young, the zealous, there is always this re-making of the wheel, and the Eureka! moment will come someday. Maybe in time to save some of that "last 5% of the remaining...." from being incinerated, the trails closed due to burned tree hazards for years to come, and those trails lost to erosion resulting from no maintenance. Something has to change. Maybe Mr. Wilkes' vast experience with a Federal agency that seems to be accomplishment based, the NRCS, can help him move the mountain of resistance at the USFS Chief's office, and the public forests will again begin to be used for multiple purposes, with recreation paramount.
To give further validity to Bearbait's assertions as well as to expand on them, one of these trees turned pulp to paper clearly stated that new hiring efforts should focus primarily on pursing minority hiring over that of the local population in an effort to "increase diversity" in the local population itself. Move minorities in at taxpayer expense if necessary. Montana is a little too "white"? The Forest Service can change that. Idaho? Same thing. Wyoming? Whatever...
Talk about the Forest Service being engaged in social engineering! It reminded me of the scene in Braveheart where Longshanks said, "The problem with Scotland is that it is full of Scots." The solution was to "breed them out"; "Social engineering" of the first order.
Quality employees in the Forest Service? No, not hardly. In fact the Forest Service is a joke. In the wonderful fantasy world of the F.S., competent employees happen more as an accident, not by design. The whole organization is a gigantic affirmative action program and competence is irrelevant. I asked a retiring District Ranger once who he believed his replacement would be. He looked at me wryly and stated, "I don't know who she will be." He was correct. She was a disaster.
Forest Service employees who rise through the ranks to the level of Top Hypocrite and Liar are generally the most political and psychologically ruthless, not the most competent. They are simply the most adept at "playing the game". They cannot envision "rights" nor "wrongs". At best they are amoral, but in the main, they are immoral and both the public and the lands are victimized by them. They don't care - they are generally either affected by extreme narcissistic personality disorder or are non-violent psychopaths. There's no "soul" there, brother...
Both scum and cream rise to the top, and though a part of the Department of Agriculture, the Forest Service would know milk from pond muck, and neither does the B.L.M. Our public lands are "managed" by the lowest of the bottom-feeders, and are nothing more than substandard members of the species who cannot succeed in any sort of private competitive environment.
That is why the "worst of the worst" generally look to the government for employment. They are incapable of success in the "real world". It's but a small step away from being on welfare. They go through the motions. Show up, mill about like sheep in a pen for the first hour, "work" about three hours for eight hours of stolen taxpayer money and debt to the Chinese, and life is good!
What "success" they do attain occurs inside a closed social system that rewards, guarantees, and protects these markedly inept creatures from the real-life consequences of stupidity. By God, they are rewarded for it instead!
I had three crews on a project fire. Our division boss was a grey haired guy about 45. He was being "mentored" by a woman sitting in an SUV reading the SF Examiner. Never saw her out of the rig in two weeks. She was a transfer from another non-land management agency, but had a Masters in Communication and a GS 12 rating, a five years with the USFS. Another time I had a crew planting BLM trees, and a sedan rolls up and two women get out. I asked if I could be of assistance. NO! We are from the BLM. What are you doing here? Well, Ma'm, we are burying research mice from NASA. It's an SBA contract for Title 8(a) minority contractors. And she drove off. I later found out she was the new area manager. Had transfered from Bur of Rec in Sacramento. Had a law degree. No land management experience. She had a female surveyor with here to keep her from getting lost. The District silvaculturist said I was in deep doo doo with her, and probably ought to avoid her.
The logging and sawmill jobs that were lost were not all that is gone. Also gone are jobs that used to be filled by local people, and now are filled by career job hoppers on their way to power and influence for their social engineering skills. Sad.