Page 6 - the NOISE July 2014

a fiefdom on
public land?
While citizens recreating on national forest lands have been winning lawsuits supporting fee-free access to public lands, another case has been decided in Washington,
DC that may give the United States Forest Service (USFS) a way to continue to charge the fees recent judgments have outlawed.
BARK v. USFS was filed on September 11, 2012 to challenge the USFS’ use of private concessionaires to circumvent fee prohibitions established in the Federal Lands Recreation Enhancement Act of 2004 (FLREA). Five individuals and BARK, an Oregon non-profit organization dedicated to the protection of Mt. Hood National Forest, levied the suit. The decision issued by Judge Rudolph Contreras of the DC Dis- trict Court paves the way for the USFS to continue to develop and turn increasing numbers of public recreation sites over to private companies to profit from.
According to FLREA, the USFS is not allowed to charge fees for general access, undeveloped areas, parking, scenic overlooks, roadside picnicking, or just passing through an area without using any of its facilities. Several lawsuits since 2010 have given specific definition to these fee prohibitions, including the April 28 decision by US District Judge Terry Hatter Jr. He ruled that “the Forest Service is prohibited from charging 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.”
In addition, USFS fees must go through a public review pro- cess whenever they want to add or change a use fee. While this process has demonstrated some flaws over the years, it has at least helped to keep the public informed of the USFS fee programs to some degree.
But across the nation USFS sites are being developed and then turned over to private companies to run. These Day Use Sites are managed under Special Use Permits by private, for- profit concessionaires. These concessionaires have already been charging fees for activities — like parking to go for a hike — that the USFS is prohibited from charging for under FLREA. And the BARK ruling just gave them permission to keep doing just that. Concessionaires can also choose not to honor federal recreation passes like the Senior and America the Beautiful passes.
Judge Contreras ruled a phrase in FLREA allows third par- ties to charge for goods or services “notwithstanding any oth- er provision of law” exempts concessionaire-run sites from FLREA’s restrictions. This means that concessionaires are free to charge fees the USFS cannot and that they can add and/or raise fees without any public process to keep them in check. They can charge “market rates” for services the USFS would have to provide for free.
Attorney Matt Kenna, who represented the plaintiffs in the case said,“The ruling confirms the Forest Service position that once they let private companies run these sites, they don’t have to abide by the same restrictions the agency itself does.”
Kitty Benzar from the Western Slope No Fee Coalition said, “With this ruling, the Forest Service is free to complete the conversion (which has already begun) of all recreation
story & photo by cindy cole
to private management. Concessionaires will be allowed to require that you pay them a fee for access to roads and trails, use of toilets and picnic tables, and general access to unde- veloped backcountry. There will be no public participation or involvement in decisions to establish or raise fees.” This also means that Congressional oversight as provided through FL- REA is moot when it comes to concessionaire sites.
So what’s a hiker to do? “It’s up to us to tell Congress they must act,”said Ms. Benzar. “This is the end of public recreation on National Forests as we have known it, unless Congress steps in to change the law.”
On April 4, the House Subcommittee on Public Lands & Environmental Regulation met to begin considering what will happen to FLREA before it expires at the end of 2015. But for practical reasons, FLREA must be acted on by the end of 2014. Otherwise, any annual passes purchased after its ex- piration date in mid-December would not be valid for a full year. The draft legislation still does not address many of the shortcomings of the current law that have repeatedly landed the USFS in the courtroom to face citizens fed up with illegal use fees.
“The only way that the concessionaires are going to be held to any restrictions is if Congress changes the law,” said Ms. Ben- zar. “They must either step up to protect our access to our public lands, or allow them to be privatized and commercial- ized without limits.”
“We must flood Congress with demands that the Forest Ser- vice be prevented from turning over all recreation to private interests,” Ms. Benzar continued. “They are actively pursuing replacement legislation to FLREA — it must include mean- ingful protections for the public against concessionaire fees and policies that treat access to the natural world as a market commodity, charging whatever the market will bear for any experience on which a price can be placed.”
In a joint statement issued by Subcommittee Chairman Rob Bishop (R-UT) and Ranking Member of the full commit- tee Peter DeFazio (D-OR) the Congressmen said, “Reauthori- zation of the Federal Lands and Recreation Enhancement Act of 2004 is an area where we can work together to improve government and protect the taxpayer. We heard testimony today on draft legislation that seeks to address problems we have had with the program over the last ten years. There is still a lot of work to do, including addressing special recre- ation permits and the services of outfitters and guides.”
So far, the draft legislation fails to substantially improve current law which has been fraught with controversy and le- gal challenges. Unless it includes specific provisions limiting the USFS’ ability to use private concessionaires and reigning in the ability of private companies to charge fees wherever, whenever, and however they want, it will become more and more difficult to just go for a walk in the woods without hav- ing to open up your wallet first.
| Cindy Cole has been reporting on FLREA for more than 3 years now. cindycole@live.com
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