Page 12 - the NOISE June 2012

If a fee falls in the forest and there are no rangers around to hear it, can they keep charging you the fee? If you’re in the Red Rock Ranger District of the Coconino National Forest they can. Even the voice of a Federal District Court judge doesn’t seem to be able to stop them. If you’ve bought a Red Rock Pass lately to park your car and go for a hike in the forest, you may have been duped into paying a fee that, legally, you are not required to pay.
On February 9, 2012 the US 9th Circuit Court of Appeals overturned a lower court decision in the case of Adams v. USFS. In this case, the United States Forest Service was sued over recreation fees at Mt. Lemmon in the Corona- do National Forest in Arizona. This landmark decision ruled that the USFS has been charg- ing fees where they are expressly prohibited by the Forest Lands Recreation Enhance- ment Act of 2004.
But if you take a look around the RRRD, you will find some new signs posted that con- tinue to deem some locations as “fee areas.” And there are still plenty of signs stating “all parked vehicles must display a valid recre- ation pass.” But the decision in the Mt. Lem- mon case makes it clear that requirement is not in line with the law as the courts have interpreted it.
According to FLREA, a site must have six amenities in place in order for a fee to be charged at that location. The six required amenities are (1) designated developed park- ing; (2) a permanent toilet facility; (3) a per- manent trash receptacle; (4) an interpretive sign, exhibit, or kiosk; (5) picnic tables; and (6) security services.
But FLREA also expressly prohibits fees “solely for parking, undesignated parking, or picnicking along roads or trail-sides; for
persons who are driving through, walking 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 un- developed sites that do not provide a mini- mum number of facilities and services.”
In the case of US v. Smith, Sedona resident Jim Smith challenged a ticket he received for failing to display a RRP while his car was parked in an undeveloped area of the RRRD. In his decision in this case, US Magistrate Judge Mark E. Aspey of Flagstaff wrote that
“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 Nation- al Forests, and other public lands, and quite plainly prohibiting the agency from estab- lishing any system which requires the public to pay for parking or simple access to trails or undeveloped camping sites.”
Following this decision, the RRRD built several new bathrooms at places like Baldwin and Doe/Bear Mesa Trailheads. Picnic tables were installed at several sites that already had bathrooms as well as those that received new facilities. The USFS is not required to get input or approval for development of recreation sites so the construction of these new amenities was not subject to any public scrutiny.
In an effort to create additional sites where fees could still be collected following the Smith decision, the RRRD has built up as many locations as it could. Of course, these new facilities will now require additional funds to be properly maintained. And, following the Smith decision, the structure of the RRP fee system was changed and the number of lo- cations where fees could be required was re- duced. So, without knowing what affect the new fee system would have on revenues, the USFS has taken actions not requiring public approval that will ultimately increase costs in the area.
Then along came the Adams decision. This case took the Smith decision one step further. It challenged fee policies that violate the pro- vision in FLREA, stating a forest visitor cannot be charged a fee for simply parking to go hiking or picnicking by the side of the road if they do not use any amenities. The lower court in this case originally ruled it was not up to the USFS to determine whether a visitor did or did not use amenities while recreating on forest land. The USFS argued that if ame- nities were present in an “area,” a fee could be charged even when they were not used.
In the Appeals Court decision, US District Judge Robert W. Gettleman, wrote the USFS’ arguments on this point were “illogical.” The Adams decision makes it clear no fees can be charged solely for parking, even if other ame- nities are present if those amenities are not used by the visitor. Judge Gettleman further wrote: “everyone is entitled to enter national
forests without paying a cent.”
This goes to the core of the RRP system
making the recreation pass impossible to administer in a way that does not violate fed- eral law as interpreted by the courts. So why are there still signs in Sedona stating “parked vehicle must display a valid recreation pass” when the RRP has been invalidated in federal court?
And what about fee sites currently operat- ed by concessionaires? In the RRRD there are three locations managed by privately owned company, Recreation Resource Manage- ment (RRM). They are Crescent Moon Ranch, Grasshopper Point, and Call O’ the Canyon (West Fork).
I recently visited the Crescent Moon Ranch location and asked the RRM employee who was collecting the $9 entry fee at the gate if he was familiar with the Mt. Lemmon deci- sion and its impact at his location. Since he had not heard of it, I gave him a brief expla- nation and asked him if he would allow me to enter the parking area without paying a fee if I assured him I had no intention of using any of the site’s amenities. I assured him my right to do so had been upheld in federal court. He apologized for refusing my request, thanked me for bringing the matter to his attention, and told me he would be asking his employer for more information about my claim.
In May 2012 the USFS issued its third Trien- nial Report to Congress on the Implementation of the Federal Lands Recreation Enhancement Act. The report is filled with statistics that clearly aim to garner support for the continu- ation of recreation fees on federal lands as FL- REA is due to expire in 2014. FLREA granted both the authority for forests to collect fees and also the ability for those forests to retain the fees they amass. The May 2012 report claims that 80-100% of fees collected at a recreation site are retained and reinvested at that site. It also asserts that 77% of visitors to the RRRD approve of the fees collected there. But have these claims been substantiated?
Fee retention was granted by FLREA and has changed the way forest districts are funded since its implementation. In the past, agency fees were placed in a general fund and each forest relied on Federal bud- get appropriations to operate. Funds ap- propriated by Congress to the USFS have increased 75% since 1999. However, forests and districts that employ user fees seem to lose appropriations proportionately to the amounts reported as collection fees. So, the more “self-sufficient” a forest seems to be, the less money it gets from Washington, DC. As the result of allowing fees to be charged at the local level, more and more of congressio- nally appropriated funds to the USFS are be- ing spent in the Capitol at the administrative level. This causes the districts to implement more user fees in an effort to raise income for the upkeep of local public lands. In this way, user fees don’t actually result in an area hav- ing any more or less revenue than it would have had without the fees.
The USFS’s accounting methods have been under investigation by the US Govern- ment Accountability Office (GAO) since at least 2003 (soon after many forests began to participate in recreation fee programs). In a report issued in September 2006 [GAO-06-
1016], the GAO stated that “some agencies lack adequate controls and accounting pro- cedures over collected recreation fees.” In the RRRD, some glaring accounting problems have come to light.
FLREA has another requirement: the costs of collecting fees in a district must not exceed 15% of the fee revenues. In Sedona, approxi- mately 32% of recreation fees are collected via fee machines. And about 48% of those fees are retained by the owner of the fee ma-
chine. However, fee machines are not consid- ered to be vendors of the Red Rock Pass. Not calling the fee machine owners “vendors” has allowed the USFS to use the fee machines not as a program cost but as a “visitor service.” It justifies this classification citing the ability to pay the fee onsite is a convenience to visitors.
This accounting practice is under review and the cost of vending machine operation may be moved to the category of “direct operating costs” by the USFS. However, this change would be meaningless to the FLREA requirements and the criticisms made by GAO. The USFS would still not be including vending machine overhead as an “adminis- trative cost” of the fee program. So, the 48% of collected revenues in 2010 that went to the vending machine owners would still not be calculated under the 15% limit.
So isn’t it just a trick of accounting allowing the USFS to claim that 80-100% of fees col- lected are retained at the local level? Clearly, at least in Sedona, this is not the case. Nearly half of the money put into fee machines in the RRRD is going to the fee machine owners, none of whom are even Arizona-based com- panies. The fee machine revenue has never been audited nor are there any protections against fraud built into the system.
What about approval ratings for recreation fees? In the May 2012 report, the USFS claims that 77% of those who commented sup- ported the Red Rock Pass during the public review process conducted in 2011. But there are a few problems with that number too. First of all, there were only 650 comments received. That number is hardly of statistical value as a sampling of the 1.5 to 4 million visi- tors (depending on who you ask) that come to Sedona each year. It’s not even a signifi- cant sampling of the more than 10,000 peo- ple that live here.
Second, after careful review of comments conducted by Kitty Benzar of the Western Slope No Fee Coalition, it became appar- ent that the USFS had used their influence to sway opinion in their favor. Comments involving direct participation of USFS staff or volunteers were noticeably skewed in sup- port of fees. The level of approval dropped dramatically when only written letters and emails were tallied.
On page 64 of the May 2012 report, the Red Rock Ranger District is featured as a model of public participation, approval, and implementation of a recreation fee. The re- port states that “Red Rock is an example of ex- tensive public involvement conducted by the USFS to improve nationwide consistency of standard amenity recreation fee areas while providing publicly desired facilities, services, and amenities.” Making no mention of the Smith decision, which was the real catalyst for the restructuring and reduction of the size of the fee area in and around Sedona, the report claims this was done “largely in response to a national effort to enhance consistency in USFS fees for areas.”
The Coconino National Forest and the Red Rock Ranger District have made no public announcements about the Mt. Lemmon deci- sion and its affect on the Red Rock Pass. No efforts have been made to create a way to ex- empt visitors from recreation fees when ame- nities are not used. Signs around the district continue to instruct visitors that fees are re- quired for activities which they clearly, legally, are not. The fee has fallen in the forest but apparently it has done so on deaf ears.
| Cindy Cole is a writer, hiker, and mother who photographs the Red Rocks with majesty. cindycole@thenoise.us
12 • JULY 2012 • the NOISE arts & news magazine • thenoise.us