Page 10 - the NOISE September 2015

new plans for red rock pass sTill fall shorT
The Red Rock Ranger District (RRRD) of Arizona’s Coconino National Forest has announced that it will introduce a fee revision request to the Bureau of Land Management’s (BLM) citizen-based Recreation Resource Advisory Committee (RecRAC) in spring 2016. The request
modifies the implementation of the Red Rock Pass (RRP) program and redefines so-called “areas” and sites within the district where recreation fees will be applied. However, the plan con- tinues to challenge recent legal decisions that have upheld strict adherence to the language of the Federal Lands Recreation Enhancement Act of 2004 (FLREA), the law that authorizes and
defines the recreation fee authority of federal land agencies.
In 2012, the RRRD implemented a revised plan for the RRP system. The changes came in the
wake of 2010’s US District Court case US v. Smith. Sedona backcountry hiker Jim Smith chal- lenged a ticket he received for failing to display a RRP after parking his car off Vultee Arch Road in West Sedona to access a wilderness area. The court not only dismissed his ticket but, in a remarkably lengthy decision, U.S. Magistrate Judge Mark E. Aspey, of Flagstaff, questioned the validity of the RRP program as it was implemented at that time.
In response, the RRRD was forced to reconsider its recreation fee system and make appropri- ate adjustments. The fee system was reined in to include only two corridors (along Hwy 179 through the Village of Oak Creek and Hwy 89A through Oak Creek Canyon) and seven stand- alone sites (Palatki, Honanki, and V Bar V Heritage sites, and Baldwin, Jim Thompson, Boynton Canyon, and Doe/Bear Mesa trailheads) rather than the full 160,000 acres of district forest land. The USFS boasted about the 93% reduction in the “fee area” size without making note of the fact that the remaining fee sites provide the only access to much of the forest’s acreage in the district.
Portions of the system are still in violation of the Smith decision; specifically the areas along the highway corridors that are not part of formal day use sites and therefore do not have the required six amenities that justify a fee site according to FLREA. The six required amenities are designated developed parking, a permanent toilet facility, a permanent trash receptacle, an interpretive sign, exhibit or kiosk, picnic tables, and security services.
The new RRP fee system was implemented on February 1, 2012. But, on February 9, another legal challenge to United States Forest Service (USFS) fee authority, Adams v. USFS, was decided and the USFS was on the losing side. The U.S. 9th Circuit Court of Appeals ruled that the USFS has been charging fees where they are expressly prohibited by FLREA.
FLREA states that recreation fees cannot be charged “solely for parking, undesignated parking, or picnicking along roads or trailsides; for persons who are driving through, walking through, boating through, horseback riding through, or hiking through Federal recreational lands and waters without using the facilities and services; and for camping at undeveloped sites that do not provide a minimum number of facilities and services.”
In the Appeals Court decision Senior United States District Judge Robert W. Gettleman wrote that the law “provides simply and unambiguously that the Forest Service cannot collect a stan- dard amenity fee from someone who picnics on a road or trailside, even if that picnic occurs within an ‘area’ that has amenities. The Forest Service fails to distinguish — as the statute does
— between someone who glides into a paved parking space and sits at a picnic table enjoying a feast of caviar and champagne, and someone who parks on the side of the highway, sits on a pile of gravel, and eats an old baloney sandwich while the cars whizz by. The agency collects the same fee from both types of picnickers. That practice violates the statute’s plain text.” In other words, even when amenities are present, a forest visitor does not owe a fee to the USFS unless they use the provided amenities.
The 9th Circuit Court decision was the result of a challenge brought by hikers in the Mt. Lem- mon area of the Coronado National Forest near Tucson, AZ. The RRRD has held that the deci- sion applies only to that area and has refused to remedy its own fee system. But the 9th Circuit Court includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Wash- ington making the Adams v. USFS decision binding in all of those states. The proposed changes to the RRP fee system continue to challenge this legal standpoint.
The proposed changes to the RRP include eliminating the two fee “corridors” continuing to require fees only at particular sites in each area. “Visitor use and public comments indicate the distinction between fee areas and stand-alone fees sites is confusing to visitors,” the forest
sTory by cindy cole phoTo by callie luedeker
service’s announcement states. Along the 89A corridor, the remaining fee sites as proposed would be “Bootlegger Picnic Site, Banjo Bill Picnic Site, Halfway Picnic Site, Encinoso Picnic Site, Midgley Bridge Vista and Picnic Site, and Huckaby Trailhead and Picnic Site.” Along 179, the fee sites would be “Little Horse Trailhead and Picnic Site, Courthouse Vista and Picnic Site, Yavapai Vista and Picnic Site, Bell Rock Vista and Picnic Site, and Cathedral Rock Vista and Trailhead.” The announcement notes that the Cathedral Rock trailhead does not currently contain the six amenities required by FLREA and that no fee will be collected at that location until additional facilities are in place.
Also of note is the renaming of these locations to include “Picnic Site” in their titles. In order to qualify as fee sites under earlier plan revisions, the USFS added amenities to several trail- heads to make sure they contained the six required by law. The most common addition that many trailheads lacked was picnic tables. The fact that these areas were not generally sought out as a great place to have a picnic but used only as access to popular forest trails did not deter the forest managers from adding the amenities that were needed to justify fees. As a result, maintenance costs for a number of areas have risen, perhaps unnecessarily. The RRRD’s request to add two additional stand-alone fee sites outside of the highway corridor areas supports this backwards planning scheme.
The proposed fee revisions would add two brand new sites to the RRP fee system. The first is the “Dry Creek Vista Picnic Site.” This is a newly constructed day use site off Vultee Arch Road very near the location where Jim Smith received his dismissed ticket for failure to display a recreation pass. Prior to completion of construction of bathrooms, trash receptacles, parking, and signage, the spot was used primarily as an out-of-the-way place to pull over and watch the sun set in the western sky.
The second new site is the Fay Canyon “Vista and Trailhead” Site. Planning for the construc- tion of a restroom, trash receptacles, and picnic tables is underway so the facilities can be completed before the implementation of new fees at the site. The USFS says the site already has designated parking, an interpretive kiosk, and “security patrols,” completing the sextet of required amenities.
“The ability to recover costs at two popular sites (Dry Creek and Fay) will ensure that these two sites are properly cared for. Visitor services such as clean bathrooms, trash-free recreations sites, and information and interpretive signs will enhance visitors’ enjoyment,” says the district’s proposal. But it seems they have, once again, put the cart before the horse, so to speak. The amenities are already either completed or in the process thereof before the forest knows that it will be granted the right to charge fees at these locations. Construction and new maintenance costs have already been incurred.
“The Red Rock Fee Program fee sites host thousands of visitors each year,” the USFS says. “Most of these sites are open to the public 24 hours a day, 7 days a week (cultural sites are closed at night). Visitors enjoy picnicking, hiking, photography, art, star gazing, meditation, and other recreational activities. These activities are supported by the amenities provided by the fee sites, and maintained by the revenue from the fee program. The provision of developed recreation sites is a key component of the resource protection strategy for the sensitive Red Rock landscape. In addition, these sites and the forest access they facilitate are critical to the
local economy and lifestyle.”
But what about compliance with federal law and the court decisions that have upheld spe-
cific requirements of that law? The Mt. Lemmon decision is binding in all the states that belong to the 9th Circuit, including Arizona. In the Coronado National Forest, the fee system at Mt. Lem- mon was adjusted to provide separate parking areas at day use fee sites to accommodate visi- tors who only want to park their car and go for a walk. The 9th Circuit decision upheld the ability of hikers to access trailheads without paying a fee to the USFS. Calling a site a “Vista and Picnic Site” does not make it so for everyone. Where trailheads are present, some visitors’ only use of a site is to access public land to go for a hike. And in February 2012, Judge Robert Gettleman wrote, “Everyone is entitled to enter national forests without paying a cent.
| Cindy Cole thinks she’ll pass on the Red Rock Pass. Cindycole@live.com newsfeature
10 • SEPTEMBER 2015 •
NOISE arts & news • thenoise.us
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10 • SEPTEMBER 2015 • the NOISE arts & news • thenoise.us