Page 11 - the NOISE August 2012

USFS’ arguments on this point were “illogical.” The ruling goes on to say: “Consider what would happen if a restaurant-goer in- spected his bill and noticed an unexpect- ed charge. If told that the fee was for ten bottles of wine that the patron’s group neither ordered nor drank, the patron would rightly be outraged. He would not find much solace in a waiter’s ex- planation that the wine cellar contained ten bottles, which the patron could have ordered if he wished.”
The Adams decision makes it clear that no fees can be charged solely for parking, even if other amenities are present if those ameni- ties are not used by the visitor.
At Mt. Lemmon, signs have been removed which once declared a fee was required for activities like picnicking, hiking trailheads, and parking roadside. Visitors driving up the Catalina Highway are no longer required to pay a fee at the base of Mt. Lemmon. Visitors will only pay a fee if they use the developed amenities like picnic areas along the way or restrooms at the summit.
While it would seem these changes should be valid nationwide, having been decided in a US Courts of Appeals based on the word- ing of federal law, the USFS is maintaining they only affect the areas in which they were made. In the March 1 press release, the USFS stated that “visitors to national forests should continue expect to pay the established rec- reation fees that are currently in place.”
Kitty Benzar of the Western Slope No Fee Coalition has been fighting recreation fees for more than ten years. In response to the USFS press release, Ms. Benzar says: “That’s absurd. The Ninth Circuit decision trumps any internal review process. The Forest Ser- vice did have a window of time in which to appeal, but once the decision takes effect, compliance must follow immediately.”
In the Red Rock Ranger District, there are still signs indicating that “parked vehicles re- quire a valid recreation pass” and declaring other locations as “fee areas.”
I contacted the Red Rock Ranger District in mid-July to ask what affect the Mt. Lemmon ruling would have on fees in Sedona. Would there be additional changes to the Red Rock Pass system as a response to the Adams decision? Connie Birkland, Public Affairs Specialist for the district, stated that “the Mt. Lemmon decision doesn’t seem to affect us. We are not interpreting it as such nor do we feel we are affected by it.”
Ms. Birkland also told me that the new RRP system is working well in Sedona. “We really haven’t seen a drop in revenue,” she said. “We go over a map with visitors and if they even think they might go to one of the sites that require a fee, they simply buy a pass.” But the problem is that, according to the Mt. Lemmon decision, it is no longer just about location. It is also about the activities a visitor will be engaging in at any particular site. In Sedona, as in other forests around the country, the agency is not making any efforts to exempt visitors from prohibited recreation fees.
I requested an interview with Heather Provencio, the District Ranger for the RRRD. I told Ms. Birkland I would like to talk with Ms. Provencio about how she feels the re- vamped pass system is working in Red Rock country and what effect the Mt. Lemmon de- cision would have here. The morning of the planned interview, I received an email defer- ring me to Francisco Valenzuela, Director of Recreation Heritage and Wilderness for the Southwest Regional Office of the USFS. “He
can be more helpful in addressing any issues related to the Mt. Lemmon decision and if there are any ties to the Red Rock Pass pro- gram decisions,” wrote Ms. Birkland. Several calls to Mr. Valenzuela have not yet been re- turned.
According to Ms. Benzar, “As far as we’ve been able to determine, there has been no Violation Notice issued for failure to pay a recreation fee on a National Forest anywhere in the country since the Mt. Lemmon deci- sion came down. I believe that’s because even though the Forest Service claims Mt. Lemmon doesn’t apply anywhere else, they are not willing to test that in court. The un- written policy appears to be that recreation fees are only to be enforced through in- timidation, not through the courts, and the policy seems to be coming down from the top levels of the agency. People should in- form themselves about what activities they can engage in without owing a recreation fee, and then they should get out there and freely enjoy those activities on their National Forests.”
In the meantime, Ms. Benzar speculates that the USFS will avoid the possibility of re- turning to court by using a compliance tool called a Notice of Required Fee rather than issuing Violation Notices for failure to pay fees. A NRF looks similar to a VN but it is not enforceable nor does it carry any other fine or penalty. Referring to an internal Forest Service memo from 2009, Ms. Benzar states that NRFs “are nothing more than a request for a voluntary donation to the Forest Ser- vice” and can be ignored. Ms. Benzar further criticizes the USFS for using this tactic as a way to avoid further challenges in court.
A NRF looks a lot like a VN and even con- tains language that states that “failure to pay the required fee may subject you to criminal enforcement under 16 U.S.C. 6811 and 36 CFR 261.17. To remedy this Notice, enclose a personal check or money order for the $5.00 recreation use fee payable to the USDA For- est Service in the attached envelope. Post- age must be added to the envelope.” This threat is only true if the USFS follows up by later issuing an actual VN for another inci- dent which can then be prosecuted.
The creation of the NRF occurred near the end of 2009 and also added the ability of the USFS to place license plates in a data- base called LEIMERs (Law Enforcement and Investigations Management Attainment Re- porting System). This means USFS can see whether or not a forest visitor is a “repeat offender,” then determining to issue a VN. {If you or someone you know has received a Violation Notice for visiting the Red Rock Ranger District in 2012, please contact edi- tor@thenoise.us.}
But the USFS has surely come to realize its recreation fees are not holding up in court. Issuing a NRF intimidates people into paying fees but helps keep the USFS from having to go to court again to defend them. “It is be- neath contempt for a federal agency, sworn to uphold the law and the Constitution, to stoop to something as low as the NRF,” says Ms. Benzar.
If you happen to see Tony Soprano hiking in the forest, let him know that, in Sedona, he might be outgunned.
| Cindy J. Cole knows she’s seriously investigating when two of her articles appear in the same month in the same magazine. cindycole@live.com
thenoise.us • the NOISE arts & news magazine • AUGUST 2012 • 11