Page 8 - the NOISE May 2013

mt. lemmon case settled
The lawsuit against the us forest service
opposing the implementation of recreation fees at the mt. lemmon recreation area near Tucson has been settled. The court ordered agreement includes restrictions to the areas in which fees can be collected and elimination of the entry fee. The red rock ranger district continues to ignore the de- cision.
Many of the changes made to the Red Rock Pass system, implemented just days be- fore the Mt. Lemmon ruling, continue to be in violation of federal law. “The Mt. Lemmon decision doesn’t seem to affect us,” said con- nie birkland, Public Affairs Specialist for the Red Rock Ranger District, last August. “We are not interpreting it as such nor do we feel we are affected by it.”
us district court Judge raner collins
wrote in the settlement order that “the re- duction in the size of the Mount Lemmon Recreation Area will enable recreational use free of charge in more than 99% of the original fee area.” The Mt. Lemmon case was heard before the 9th Circuit Court of Appeals which ruled that the USFS was overstepping its bounds with fees that were in violation of the federal lands recreation enhance- ment act of 2004. The fees at Mt. Lemmon were being implemented in ways similar to the Red Rock Pass system.
Adjustments are supposed to be already underway at Mt. Lemmon but, to date, the USFS has not officially submitted proposed changes to signs and other visitor informa- tion to the plaintiffs in the case for comment as required by the settlement agreement. A call to the Public Affairs Officer of the Santa Catalina District of the Coronado National Forest for an update on the status of these steps was unanswered at press time.
Changes to the Mt. Lemmon area include the elimination of the entrance fee that was previously collected at a Welcome Station at the base of the mountain. The USFS stopped collecting that fee in February 2012. Accord- ing to the settlement, the Welcome Station may still be used but only to inform visitors about the location of fee sites and collect fees only when visitors indicate they will be entering those areas. The USFS is required to clearly mark those fee sites and also to place signage indicating non-fee parking areas for those that wish to engage in activities that do not include the use of developed facili- ties like hiking and roadside picnics. There will no longer be any fee for those entering the area on foot, by bicycle, or on horseback. Motorists who are simply passing through the area will not be required to pay and a pass-through lane will be provided at the
Welcome Station.
Perhaps most significantly, the Coronado
will be required to provide a fee free park- ing area for access to the arizona national trail, which provides access to wilderness areas in the forest. When changes to the Red Rock Pass system were considered by the arizona recreation resource advi- sory council in 2011 and 2012, the citizen’s advisory board recommended that fee free access to trailheads be provided in the red rock ranger district as well. The 9th Circuit Court has affirmed that this type of access is required by law and therefore included it in the settlement provisions. The RRRD has never responded to this recommendation and there is still no designated fee free park- ing available in areas where fee sites have been structured around trailheads, even those that access wilderness areas. With the implementation of fee free trail access in the Coronado, perhaps the RecRAC will reiterate its recommendation for the rest of Arizona’s forests and trailheads.
Also of interest is the fact that the USFS will be presenting the settlement agreement changes to the RecRAC at their next meeting, which is scheduled to take place on April 30. After all, the court agreement is binding and, even if the RecRAC does not recommend it, the agreement as provided by the court will still prevail. Of course, the RecRAC is likely to go along with the agreement as the board has a history of signing off on USFS requests without much argument or debate. In the past, fee changes and increases across the state of Arizona have been blanketly ap- proved by the RecRAC. Additionally, the group is only an advisory board and the USFS is not mandated to follow through on recommendations if they are counter to the USFS’ own objectives.
So, in the Mt. Lemmon case, the USFS has actively sought to present information to the RecRAC and get their support. So much so that the Southwest Regional Director of Recreation Heritage and Wilderness, fran- cisco valenzuela, is scheduled to attend the meeting along with connie lane, Forest Recreation, Lands and Special Uses Program Manager of the Coronado National Forest, and stan helin, District Ranger of the Coro- nado’s Santa Catalina Ranger District, where Mt. Lemmon is located.
A call to Mr. Valenzuela’s office for a com- ment on his reason for attending the meet- ing and what he intends to present before the RecRAC was unanswered at press time. Is the USFS trying to prove the RecRAC process is effective and valid, even when evidence says otherwise? Or is it trying to underplay the importance of the fact the changes made in the Coronado are due to an agree- ment that was the result of a case lost in a federal courtroom, not just an agency review
of current fee policies?
Another interesting point can be raised
about involving the RecRAC in the Mt. Lem- mon settlement — one about the impor- tance of following the law, which suddenly the USFS seems to want to do in this case. But FLREA also states the RecRAC must be consulted when a fee is eliminated on a for- est as well. And that any fee changes must be published for public review and com- ment. While it may seem ridiculous to argue about how it’s done as long as a fee is being reduced or abolished, if a forest eliminates a fee administratively without following prop- er procedure, why can’t it create one?
The Tonto National Forest has eliminated fees at several campgrounds and recreation sites according to its website. But none of those sites were submitted to the RecRAC for review before changes were made. When questioned about the changes by kitty ben- zar, Director of the Western slope no fee coalition (westernslopenofee.org), the Tonto’s response was that it “had to reduce services to the point that the sites no lon- ger met the minimum services required in FLREA. Trash collection was stopped. Some toilets were locked. Patrolling was reduced.”
The Tonto is in the process of conduct- ing public participation efforts to review its implementation of recreation fees through- out its lands, similar to meetings conducted in Sedona in 2011 and 2012. Part of that process has been asking the public to help determine where fees are appropriate and supported and where they are not. In the meantime, the Tonto seems to have been able to make that determination all on its own and eliminate fees for sites deemed to no longer meet the requirements of the law even though the procedures the law puts in place for fee elimination and public review were not followed.
other laWsuits pendinG
Two other lawsuits filed against the USFS challenging recreation fee implementa- tions are pending, both in California. peter Wiechers filed suit against the southern sierra pass of the sequoia national for- est. Another challenges the Adventure Pass which covers four national forests in South- ern California — the Angeles, Cleveland, Los Padres, and San Bernardino. A settlement agreement in the Adventure Pass case is on- going at this time.
On the website for the Southern Pacific Region of the USFS, where all the forests that use the Adventure Pass are located, informa- tion about obtaining a pass includes the an- ticipation of changes but does not mention the lawsuit. It states that “in June 2011 the Forest Service conducted a review of the 33 standard amenity recreation fee areas on National Forest System lands in California. As a result, the Forest Service is proposing to eliminate fee area designations for 23 lo- cations and reduce the boundaries for the rest. These proposed actions will result in the elimination of recreation fees from many recreation sites and areas.” Once again, any court decision will prevail over “proposed ac- tions” by the USFS.
So changes are coming slowly but surely one forest at a time. But the USFS’ reluctance to view the Mt. Lemmon decision as binding in all of the forests that fall under the jurisdic- tion of the 9th Circuit Court of Appeals, if not at a national level, has led to these additional lawsuits being filed. The Mt. Lemmon case came with a hefty price tag to taxpayers, too. The court awarded the plaintiffs $100,000 to cover “attorney’s fees, costs, and other ex- penses” in the case.
Ms. Benzar recently stated that “they’re go- ing to have to make this case [Mt. Lemmon]
a national precedent. There are 155 national forests. If they would like to fight this forest by forest, I think that is a colossal waste of taxpayer funding.”
fiGhtinG privatization
A motion for summary judgment was filed on March 15 in the court case that chal- lenges the USFS’ use of concessionaires to circumvent fee restrictions in FLREA. In Se- dona, all of the developed campgrounds in Oak Creek Canyon and the Day Use sites at Grasshopper Point, West Fork, and Crescent Moon Ranch (Red Rock Crossing) are oper- ated by a concessionaire.
The motion states “the Forest Service is- sues special use permits to concessionaires that allow them to charge visitors to certain Forest Service areas even when visitors do not use any facilities or services of the area, but simply wish to enter Forest Service lands to engage in undeveloped recreation.” Plain- tiffs in the case are from Arizona, Colorado, Oregon, and Washington and the challenges are against specific concessionaire run sites in each state. However, none of the sites at question in the suit are in Sedona.
In the Red Rock Ranger District, the USFS has issued Special Use Permits to recreation resource management, a private company that operates forest service campgrounds and day use sites around the country. Under their permit, RRM is allowed to charge fees in the same situations that the Mt. Lemmon decision deemed fees to be illegal when charged by the USFS. Issuing a Special Use Permit also allows the USFS to establish new fees and/or change existing ones without going through the public comment proce- dures or subjecting the fee decisions to Re- cRAC review.
The summary judgment in this case asks the court to declare that concessionaire fees at the five sites named in the suit are in vio- lation of FLREA and the fees be subjected to the public notice and RecRAC review processes. In addition, the motion asks the court to “order the Forest Service to refund plaintiffs monies they have unlawfully had to pay under the challenged policies.”
chanGinG of the Guard
As of June, heather provencio will no
longer be the District Ranger in Sedona. The USFS has announced that Ms. Provencio will become the Deputy Forest Supervisor of the White River National Forest outside of Den- ver, Colorado.
“It’s a whole new level of leadership for me,” Ms. Provencio told the Summit Daily News. She left Sedona briefly last year to serve as Acting Supervisor for a forest in Oregon, per- haps in preparation for this promotion. The White River Forest reportedly receives over 11 million visitors annually — a significant in- crease over the mere 2.5 million or so in the Coconino.
Ms. Provencio will be leaving behind a dis- trict fraught with conflict and dissent over recreation fee implementation. A place re- cently embroiled in a lawsuit — remember our brave Jim smith who fought his ticket for parking in the Vultee Arch area without a Red Rock Pass — and likely to be involved in other suits in the future if changes aren’t made. A district where residents and visitors alike continue to be duped or coerced into paying fees that, by law, they do not owe.
Good luck to you, Ms. Provencio, in your new job. And good luck to whoever has the misfortune to replace you here in Sedona. You’re gonna need it!
| Cindy Cole is an avid hiker and mom. cindycole@live.com
8 • MAY 2013 • the NOISE arts & news • thenoise.us
NEWSfeature