Page 8 - the NOISE MAY 2016 Edition

usfs: news
recreatIon
fees beg the
questIon:
what’s your use? trailhead or toilet?
By cIndy cole
In 2012 the Red Rock Ranger District revamped the Red Rock Pass system that affects forest lands around sedona. The changes were made in response to US v. Smith, a case where sedona resident Jim smith challenged the issuance of a ticket for failure to display a Red Rock Pass at a trailhead parking area along Vultee Arch Road. The recreation fee authority of the United States Forest Service is determined by the Federal Lands Recreation Enhancement Act of 2004.
Mr. smith parked his vehicle in an area that contained no developed amenities and left it overnight to access the Red Rock-secret Mountain wilderness Area. He returned to find a ticket on his vehicle. Mr. smith challenged the ticket and won his case in Us Magistrate Court in Flagstaff. Judge Mark E. Aspey not only dismissed Mr. smith’s ticket but he wrote an ex- tensive decision stating the reasons why. “FLReA is an extremely comprehensive and precise statutory scheme clearly delineating specific instances in which the public may be charged an amenity fee for use of the national Forests, and other public lands, and quite plainly prohibit- ing the agency from establishing any system which requires the public to pay for parking or simple access to trails or undeveloped camping sites.”
The Smith decision essentially dismantled the UsFs’ practice of requiring fees in large areas that did not contain amenities in close proximity. so the Ranger District set about develop- ing undeveloped areas adding things like picnic tables and bathrooms so that a smaller area could be called a Day Use Site — or Standard Amenity Recreation Fee Area — and fees could still be implemented even when the site was primarily a trailhead. FLReA requires the presence of at least six amenities to justify fees — (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.
The Ranger District implemented a new system of fee area designations on February 1, 2012 that limited the requirement for displaying a Red Rock Pass to seven stand-alone fee sites and two corridors along Highway 89A through Oak Creek Canyon and along Highway 179 through the Village of Oak Creek. The stand-alone sites are trailheads at Jim Thompson, Doe/Bear Mountain, Boynton Pass and Baldwin. The other three sites are archeological sites where there is no dispute about the UsFs’ ability to charge fees.
But here’s the catch. On February 9, 2012, just eight days following the revamp of the Red Rock Pass, the US 9th Circuit Court of Appeals handed down its decision in another case that questioned the UsFs’s implementation of its recreation fee authority. In Adams v. USFS, also known as the Mt. Lemmon Decision, four recreational visitors to the Mt. Lemmon area of the Coronado national Forest near Tucson sued the federal government for requiring a fee for park- ing to access trailheads along the Catalina Highway. The Catalina Highway is a 28-mile road that is the only paved access to the summit of Mt. Lemmon. FLReA specifically prohibits fees
“solely for parking, undesignated parking, or picnicking along roads or trail-sides.”
Adams v. USFS upheld this provision of FLReA and determined that a forest visitor cannot be charged a fee for simply parking to go hiking or picnicking by the side of the road when they do not use amenities that are provided. In other words, even if amenities are present, the UsFs
cannot require a fee if the visitor does not use them.
In the Appeals Court decision, Us District Judge Robert W. Gettleman, writing on behalf
of the unanimous three-judge panel, wrote that FLReA “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 For- est 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.”
8 • MAY 2016 • the NOISE arts & news • thenoise.us
But the Mt. Lemmon decision has fallen on deaf ears in the Red Rock Ranger District. At Mt. Lemmon, the UsFs has had to divide its parking areas so that there is fee-based parking for those who wish to make use of provided amenities and fee-free parking for visitors that just want to park to access a trailhead and do not need amenities. But the Red Rock Ranger District has continued to deny that the Mt. Lemmon decision applies in sedona. And no ac- commodations have been made for fee-free trailhead access in the district.
Instead, the Ranger District has been issuing tickets to visitors who “commit recreation without displaying a Red Rock Pass.” In May 2012, the UsFs issued an internal memo warning districts in “controversial” fee areas to hold off from issuing tickets until visitors became better acclimated to changes that had occurred. But, according to a Freedom of Information Act request for Violation Notices issued since the changes to the pass system, the Ranger District began issuing tickets for failure to pay a recreation fee beginning in 2014. The FOIA was filed in an attempt to determine how the Ranger District is enforcing the Red Rock Pass since the Smith and Mt. Lemmon decisions. Questions as to where the tickets are being issued and who is receiving them have been partially answered. However, the UsFs redacted most of the names and addresses of Violation Notice recipients.
This reporter has argued that redacted information needs to be released, as it is in the public interest to know more about who is getting the tickets, whether they are locals with greater knowledge of the area or visitors who may be less familiar with fee requirements; and how those tickets were determined. An appeal to receive this information was pending at press time.
some of the tickets provided in the FOIA request were issued at designated picnic sites that do not have specific trailheads at their location such as Encinoso and Banjo Bill in Oak Creek Canyon. The primary use of each of these sites is as a picnic area with provided amenities, so historically there have been little grounds on which to argue against the required fee. However, 34 tickets issued in 2014 and 2015 were given at trailheads, and often when the vehicle owner was not present and the ticket was left on the windshield.
In some cases, the tickets contained technical errors that could have been dismissed had the “violator” challenged the Violation Notice and gone before a judge. For example, in one case, the “Place of Violation” is listed as a post office box though the narrative indicated the ticket was issued at Midgely Bridge. Another ticket issued for illegal camping in a Day Use Area used the wrong code citation.
Many of the tickets use the same boilerplate language for describing the crimes committed by the violator. “The parking area has designated developed parking, permanent toilet facility, permanent trash receptacle, interpretive sign and kiosk, picnic tables, and law enforcement security service.” This language reiterates the presence of amenities as required by FLReA but, if the vehicle owner is not found to be using those facilities, what might they be doing when the empty vehicle is observed by UsFs law enforcement? Hiking perhaps?
Other ticket narratives seem to mock the ignorance of forest visitors pointing out that “the area has a self-pay machine in the parking lot” or that there is “a large brown sign that states ‘Red Rock Pass Required for Parking.’” But do the presence of fee machines and big brown signs
give the UsFs carte blanche to continue to ignore the decisions of federal courts?
The best recourse for forest users is to know the law and purchase fees when engaging in activities for which they can be required. If you go to a trailhead and simply park your car to go for a hike, the law does not allow the USFS to charge you a fee. On the other hand, if you pull into that same area for a picnic and use the restrooms, picnic tables, and trash recep- tacles, you should pay the required fee.
| If you received a Violation Notice or a Notice of Required Fee (NRF) for failure to pay a recreation fee in the Red Rock Ranger District, I’d
like to hear from you. Please contact me at cindycole@thenoise.us. newsfeature