Page 6 - the NOISE July 2014

COURTS PITCH 3 STRIKES
TO RRP
STORY & PHOTO BY CINDY COLE
First there was U.S. vs. James T. Smith. Then th
tem was unveiled on February 1, 2012. But another court decision closely followed.
On February 9, 2012, the Mt. Lemmon decision was issued which further clarified, and restricted, the USFS’s use of recreation fees; at least in the eyes of the federal courts and fee opponents. The three-judge panel of the 9th Circuit Court of Appeals (which represents Arizona, Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon and Wash- ington) determined that, even when ameni- ties are present at a USFS recreation site, REA only allows a fee to be charged when a visi- tor actually uses the available amenities.
Thus, if a visitor parks at a trailhead and only goes for a hike, for example, that visitor does not owe a fee to the USFS. At Mt. Lem- mon, the Coronado National Forest has had to take measures to create fee free parking areas at trailheads even when they already had the six amenities required under REA. But other forest districts, even those in the states covered by the Ninth Circuit Court, continued to deny these restrictions applied, including the RRRD. So, in California, anoth- er lawsuit was filed.
In October 2012, four Southern California hikers filed a civil lawsuit against the USFS’s Adventure Pass used in four National Forests in the area, making this program one of the largest in the country. Following the Mt. Lemmon decision, these forests continued business as usual requiring forest visitors to pay fees for activities the 9th Circuit Court had already deemed fees could not be applied.
On April 28, US District Judge Terry Hat- ter Jr. put another nail in the coffin for rec- reation fees. Judge Hatter agreed that the USFS cannot charge a fee for simply parking a car to go hiking. Citing the Mt. Lemmon de- cision, the court ruled:
“The Forest Service is prohibited from charg- ing a fee solely for parking. If a visitor does nothing other than park, the fee is solely for parking and is, therefore, plainly prohibited by the REA.”
Attorney Matt Kenna, who represented the plaintiffs in this case, said even though it only applies to the four Southern California forests using the Adventure Pass, he expects other locations to eliminate fees as well. This is the first time the Mt. Lemmon decision has been applied in another state that is also covered by the 9th Circuit Court of Appeals.
In Sedona, the two highway corridors (89A in Oak Creek Canyon and 179) where fees are required simply for parking along the side of the road are clearly in violation of both the Mt. Lemmon decision & the Adventure Pass case. In addition, trailheads that contain amenities like Bell Rock Vista and the Jim Thompson Trailhead do not provide fee-free access to those who wish only to park and go hiking.
This writer is wont to ask: What’s next for the Red Rock Pass?
| cindycole@live.com NEWSBRIEF
the Mt. Lemmon decision in the 9 Cir- cuit Court of Appeals. Then on April 28 of this year, another judge ruled Southern Cali- fornia’s Adventure Pass illegal. This puts re- cent comments by Forest Service personnel in Sedona on the line as the Red Rock Pass (RRP) is implemented in a way identical to the stricken California pass.
Recreation fees have proliferated in Na- tional Forests throughout the country since
1996 when the Fee Demo Act was imple- mented. Then around 2000 or so, forests began to permanently institute recreation “passes” for large areas of National Forest dis- tricts. That is how the RRP was originally de- signed – to require forest users to pay a fee anywhere they parked their cars in Sedona’s Red Rock Ranger District (RRRD).
In 2004, the Federal Lands Recreation Enhancement Act (REA) was passed by Congress to reel in the United States Forest Service (USFS) and other land management agencies. Congress saw the Fee Demo au- thority as too expansive and implemented limitations on when and where federal lands agencies could charge recreation fees. But some programs, like the RRP, continued to operate as if those restrictions did not ap- ply, bringing legal challenges that have re- shaped fee systems over the last few years. Sedona’s Jim Smith was responsible for one of those challenges.
In 2010, Mr. Smith had a ticket for recreating without a RRP dismissed in US District Court by Magistrate Judge Mark Aspey. Unlike previ- ous cases, Judge Aspey wrote an extensive legal decision detailing his reasons for dismiss- ing Mr. Smith’s ticket, criticizing the USFS’s lib- eral definition of the term “area” to determine where recreation fees could be required.
Citing REA’s requirement that 6 amenities (designated parking, picnic tables, bath- rooms, trash receptacles, interpretive signing, and security) be present in an ‘area’ where a fee is charged, Judge Aspey wrote:
“If the Forest Service’s construction of the term ‘area’ results in the situation where a citi- zen is charged a fee that is clearly prohibited by the statute, i.e., to pay for parking, for gen- eral access, or camping at undeveloped sites, the enforcement of payment of the fee at a site within the ‘area’ where such a fee is prohibited by the statue is ultra vires [beyond the powers of the statute] in that specific instance.”
The RRRD responded by revamping the RRP system to include 2 new “areas” and 7 stand-alone sites, some of which had ameni- ties hastily added to them in order to meet the law’s requirements as defined by Judge Aspey. The corridors along Highway 89A through Oak Creek Canyon and Highway 179 through the Village of Oak Creek contin- ue to be defined as “areas” that require fees. This in spite of the fact that some trailheads along those corridors do not contain the amenities the law requires. The new RRP sys-
6 • JUNE 2014 • the NOISE arts & news • thenoise.us