Page 10 - the NOISE August 2012

Just in case you’ve been sleeping under a red rock for the last year and a half, let me catch you up. There have been some major changes to the recreation fee system on federal lands since late 2010 that have come about because of a few coura- geous citizens who have been standing up for our right to access public lands without paying illegal fees. You might not have no- ticed the changes, though, because forests across the country are not responding to the judicial rulings that have come down. Well, they are technically “responding” via “veiled” press releases — but not by fixing the ad- ministration of their fee systems. So, even if you weren’t sleeping under that rock, you still might not be seeing any changes.
On February 9, 2012 the US Ninth Circuit Court of Appeals overturned a lower court decision regarding United States Forest Service recreation fees on the Coronado Na- tional Forest. The case of Adams v. USFS was
“reversed and remanded” back to the lower court for reconsideration. This landmark decision, also referred to as the Mt. Lemmon 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. The USFS had a period of time during which they could respond to the appeals court decision, but it did not and that time expired. There have been no fur- ther proceedings at the lower court level nor,
at this time, has the USFS asked the Supreme Court to review the case.
On March 1, 2012 the USFS issued a press release stating “recreation fees on national forests to continue.” The release attempts to defend the agency’s history with fees and states that “the US Forest Service has charged user fees since 1965.” However, earlier legislation that governed user fees on federal land was worded in a way that prohibited all fees and made specific exemp- tions to allow a small number of fees to be charged for specific activities. In fact, from
1965 until 1996, the USFS generally charged fees only at developed campgrounds.
More recent law has turned to a system of allowing wider fees and making a list of activities where fees are not permitted. This policy reversal has resulted in an explosion of user fees on federal lands, particularly since 1996. FLREA was enacted in 2004 as an attempt to curtail at least some fees on federal lands.
The purpose of FLREA was to put some limits on the fee authority of federal land agencies like the USFS. The law created some specific requirements for fee locations and also some situations where a fee could not be charged at all. According to FLREA, a site must have six amenities in place in or- der for a fee to be charged at that location:
1) designated developed parking; 2) a per- manent toilet facility; 3) a permanent trash
receptacle; 4) an interpretive sign, exhibit, or kiosk; 5) picnic tables; and 6) security ser- vices.
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 September 2010, the case of US v. Smith challenged the enforcement of fees in areas that did not contain the required amenities. Sedona resident Jim Smith was ticketed when he parked without a RRP in the Vultee Arch area of the RRRD. In that case the judge ruled that, because no amenities were pres- ent, Mr. Smith should not have been re- quired to pay a fee and dismissed his ticket. US Magistrate Judge Mark E. Aspey of Flag- staff also wrote an extensive decision which questioned the validity of the Red Rock Pass program.
Judge Aspey wrote that “the FLREA is an extremely comprehensive and precise statu- tory scheme clearly delineating specific in- stances in which the public may be charged an amenity fee for use of the National Forests, and other public lands, and quite plainly pro- hibiting the agency from establishing any system which requires the public to pay for parking or simple access to trails or undevel- oped camping sites.”
As a result, the RRP underwent an over- haul which culminated in a newly revamped
system being put into effect. The Red Rock Ranger District held several meetings asking the public for input on how the RRP could be changed in order to accommodate the judge’s ruling in the Smith case. The meet- ings were not well publicized and, consider- ing the size of the interested population in the Sedona area, not heavily attended. But it was the first time the USFS sought public input with regard to land use fees. The USFS eventually whittled an original six proposals for changes down to two options. The final scenario was a compromise of those two op- tions and created two fee “areas” along the main highway 89A and 179 corridors and seven other individual “sites” where fees would be required.
The new RRP officially went into effect on February 1, 2012. Eight days later, the Mt. Lemmon decision was reached which once again changed the landscape for the imple- mentation recreation fees on federal lands by taking the Smith decision one step further.
The Mt. Lemmon case challenged fee policies violating the provision in FLREA that states 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 provided. 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 ameni- ties 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 that the
10 • AUGUST 2012 • the NOISE arts & news magazine • thenoise.us