Page 5 - the Noise April 2017

photo by mark short
However, a more recent court decision stated that a visitor must actually use the pro- vided amenities. This is the decision Josh’s Motion to Dismiss was based on. Josh emerged from the courtroom victorious but the USFS had, once again, avoided a judge’s ruling on whether or not the ticket he received was valid.
Asked about his impression of the courtroom Josh said, “It was definitely an intimidating experience with a six foot three prosecutor coming into the courtroom and throwing his weight around. Everything worked out well,” he continued, “but I think it’s a shame they try and rattle people just to make a little extra money.”
And so the story continues.
A 2012 ruling in the Adams v. USFS case in the 9th Circuit Court of Appeals declared that the USFS could not charge a fee for forest visitors parked at a trailhead to go hiking without using any of a site’s provided amenities. That decision, commonly called the Mt. Lemmon decision, was reached after hikers in the Coronado National Forest argued against
the agency’s ability to charge a fee for access to the entire 28-mile stretch of highway that climbs Mt. Lemmon regardless of whether they parked at a trailhead to go hiking or at a picnic site and used amenities.
This ruling superseded the Smith decision from 2010. In that case, Sedona backcountry hiker Jim Smith challenged a ticket he received for failing to display a RRP after parking his car off Vultee Arch Road in West Sedona to access a wilderness area. The court not only dismissed his ticket but, in a remarkably lengthy decision, U.S. Magistrate Judge Mark E. Aspey, of Flagstaff, questioned the validity of the RRP program as it was implemented at that time. He deemed that only locations that contained the specific amenities required by the Federal Lands Recreation Enhancement Act of 2004 (FLREA) could be designated as fee sites. The six required amenities are (1) designated developed parking, (2) a permanent toilet facility, (3) a permanent trash receptacle, (4) an interpretive sign, exhibit, or kiosk, (5) picnic tables, and (6) security services.
Judge Aspey wrote that “the FLREA is an extremely comprehensive and precise statutory scheme clearly delineating specific instances in which the public may be charged an ame- nity fee for use of the National Forests, and other public lands, and quite plainly prohibiting the agency from establishing any system which requires the public to pay for parking or simple access to trails or undeveloped camping sites.”
The RRRD had to adjust the district’s recreation fee system to accommodate Judge Aspey’s decision. The new RRP fee system was implemented on February 1, 2012. But, on February 9, the Mt. Lemmon decision was issued — and the USFS was again on the losing side. The U.S. 9th Circuit Court of Appeals ruled that the USFS has been charging fees where they are expressly prohibited by FLREA.
FLREA states that recreation fees cannot be charged “solely for parking, undesignated parking, or picnicking along roads or trailsides; for persons who are driving through, walk- ing through, boating through, horseback riding through, or hiking through Federal recre- ational lands and waters without using the facilities and services; and for camping at unde- veloped sites that do not provide a minimum number of facilities and services.”
In the Appeals Court decision Senior United States District Judge Robert W. Gettle- man wrote that the law “provides simply and unambiguously that the Forest Service cannot collect a standard amenity fee from someone who picnics on a road or trailside, even if that picnic occurs within an ‘area’ that has amenities. The Forest Service fails to distinguish — as the statute does — between someone who glides into a paved parking space and sits at a picnic table enjoying a feast of caviar and champagne, and someone who parks on the side of the highway, sits on a pile of gravel, and eats an old baloney sandwich while the cars whizz by. The agency collects the same fee from both types of picnickers. That practice violates the statute’s plain text.” In other words, even when amenities are present, a forest visitor does not owe a fee to the USFS unless they use the provided amenities.
Because Mt. Lemmon is in the Coronado National Forest near Tucson, the RRRD has held that the decision applies only to that area and has refused to remedy its own fee system. “The Mt. Lemmon decision doesn’t seem to affect us,” said Connie Birkland, Public Affairs Specialist for the Red Rock Ranger District, in August 2012. “We are not interpreting it as such nor do we feel we are affected by it.”
But the 9th Circuit Court includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Ne- vada, Oregon, and Washington making the Adams v. USFS decision binding in all of those states. The fact that someone like Josh gets ticketed for not having a Red Rock Pass even though he parked at Midgley Bridge only to go hiking shows that the RRRD is not comply- ing with the court’s decision.
“The 9th Circuit Court decision trumped all attempts for the USFS to collect fees simply for parking,” said Kitty Benzar of the Western Slope No Fee Coalition, “even at loca- tions that contain amenities like bathrooms and picnic tables if those amenities are not used. Josh was miles away when the Violation Notice was placed on his car. There was no probable cause for a LEO to believe he had used amenities. He was just there to park and go hiking.”
“John Nelson, the Court Liason, initially offered to me to just pay the $80 ticket and ac- cept the criminal misdemeanor charge,” Josh said. “He told me that because bathrooms and amenities were present, I was in the wrong and that I would be charged and fined. After I sent him the Motion to Dismiss, he offered me the opportunity to just buy a Red Rock Pass. He told me again that the violation was valid and my ticket would not be dismissed.”
The 9th Circuit decision upheld the ability of hikers to access trailheads without paying a fee to the USFS. Where trailheads are present, some visitors’ only use of a site is to access public land to go for a hike. If the RRRD is so sure that the Mt. Lemmon decision does not apply here in Sedona, why is it so deliberately avoiding having a judge make a decision on a Violation Notice for failure to display a Red Rock Pass?
Perhaps because, once a judge makes a ruling that applies Mt. Lemmon in Sedona, there will be no turning back and the USFS will have to acknowledge that the district is not in compliance with the law. But as long as the Red Rock Ranger District can keep a judge from hearing the arguments laid out in Josh’s Motion to Dismiss, the USFS can avoid applying the Mt. Lemmon decision here and continue to issue tickets. Is the Red Rock Ranger relying on visitors’ ignorance of the law as a way to collect additional fees for the coffers?
In February 2012, Judge Gettleman wrote that “everyone is entitled to enter national forests without paying a cent.” Both the FLREA law and the case law behind it support that assertion. Is the USFS in Sedona simply not listening or is there something bigger at stake?
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