Page 10 - the NOISE October 2014

REd ROCk Pass uPdatE:
if hR5204 PassEs, kiss yOuR aCCEss gOOd-ByE! Cindy COlE
STOry & PHOTO By
if you thought the current recreation fee policies of the United States forest Ser- vice (USFS) are unfair, confusing or down- right bad — just wait! If US House of Repre- sentatives bill Hr5204 becomes law, we can all kiss our access to public lands goodbye. The federal Lands recreation enhance- ment Modernization Act of 2014 (HR5204) was introduced by US Representative Rob Bishop (R-UT ) just before Congress ad- journed for its August recess this year. Al- though no hearings were held on the legisla- tion, House Committee on Natural Resources Chairman Doc Hastings (R-WA) fast-tracked the bill out of his committee to the House floor. There hasn’t been a single vote on the bill to date let alone discussion on its pros and cons. Yet Chairman Hastings declared that there was “unanimous consent” on the bill and moved it forward.
If you’re experiencing a feeling of déjà vu, it may be because both the fee Demo Act and the federal Lands recreation en- hancement Act of 2004 (FLREA) — the law that currently governs recreation fee author- ity on public lands — were passed into law in the same way. They, too, were rammed through the committee process with no hearings and no discussion. Then it was at- tached to an Omnibus Appropriations Act allowing it to be stealthily enacted. Nobody was the wiser until it was too late.
HR5204 was heading down the same track but a reprieve has occurred — for now at least. On September 18, the House passed a “clean” Continuing Appropriations resolution (HJ Res. 124) that included only a one-year extension of FLREA to December 2015. The Senate passed the identical budget measure which, at press time, was awaiting the presi- dent’s signature. But that does not mean that HR5204 is dead. It will be very much on the table for further action when Congress recon- venes following this year’s elections.
So what will change if HR5204 becomes law? According to the Western Slope no- fee Coalition (WSNFC), the biggest change will be the loss of any restrictions or deter- rents to charging fees on public lands. The legislation’s vague language and reduced requirements will open the door for fees for practically any activity the public might wish to engage in on federal land, according to the organization’s analysis.
Currently under FLREA, the USFS is prohib-
ited from charging fees for parking; picnick- ing along roads or trailsides; general access; dispersed areas with little development; driving, walking, boating, horseback riding, or hiking through Federal recreational lands and waters without using facilities; camping at undeveloped sites that do not provide minimum facilities; and use of overlooks or scenic pullouts. HR5204 replaces this lan- guage with a single prohibition that states fees are not allowed “for any site, area, or ac- tivity, except as specifically authorized under this section.” The problem is “this section” no longer contains any fee limitations so the prohibition becomes meaningless and, in re- ality, will allow the USFS to charge fees any- where for any activity.
The authority for Day Use Fees is also greatly expanded in HR5204. Under cur- rent law, there are six amenities that must be present for a location to qualify as a fee site. They are designated parking, perma- nent toilets, permanent trash receptacles, picnic tables, interpretive signs, and security services. Several court decisions have been handed down over the last few years that have further clarified this provision includ- ing one involving Sedona resident and avid hiker Jim Smith who challenged a ticket he received for recreating without a pass.
In the case of US v. Smith, the court ruled that the USFS could not designate a vast “area” for fees when much of the area was undeveloped and facilities were miles away from a trailhead, for example. This struck
down the original implementation of Se- dona’s red rock Pass (RRP) and the fee sys- tem was revamped as a result. However, the changes to the RRP followed on the heels of another court decision that determined that, even when facilities are present, if a visitor does not use them they cannot be charged a fee. The red rock ranger District (RRRD) of the Coconino national forest has contin- ued to refuse to adjust its policies or change the signage at sites and locations that are in violation of this decision. But there have been no tickets issued in the area in the last 2 years that have been challenged by a forest visitor. Without further court challenges the RRRD has been able to continue the status quo fee implementation without public ac- countability.
HR5204 would nullify the court decisions and reduce the requirements the USFS would
have to meet in order to charge a Day Use fee. Instead of taking the court cases and creat- ing a new law that better defines the agen- cy’s fee authority limitations on public lands, HR5204 would reduce existing limitations and encourage the USFS to charge more fees in more places. After all, they get to keep whatever money they can collect.
If Congress allows the USFS to self-fund through user fees without oversight and re- duced restrictions then what is to stop them from applying fees anywhere they can? And since there have still been no formal audits of recreation fee programs like the RRP, it can be pretty hard to figure out where the mon- ey is really going, even amongst claims that funds are being used to improve and main- tain the area where they are collected. This is a formula for abuse and so far the USFS has shown that they will exploit the current law to the fullest extent possible. HR5204 would extend this ability by removing any real re- strictions on where fees can be charged to public lands users.
As analyzed by WSNFC, the new Day Use Fee authority language is vague and allows the USFS to take the path of least resistance to creating fee sites in a manner that is most convenient for the agency but not necessar- ily responsive to the needs of visitors.
HR5204 states that Day Use fees may be collected at “Sites of concentrated public use that are managed primarily for outdoor recreation purposes where there has been a substantial Federal investment in facilities and services that are necessary to accommo- date heavy public use, public access to the site is provided in such a manner that fees can be effectively collected at one or more centralized locations, the site has regularly serviced and well maintained toilet facilities and contains at least four of the following: (i) Designated developed parking. (ii) Trash col- lection. (iii) Permanent interpretative materi- als. (iv) Picnic tables. (v) Routine presence of agency personnel.”
Kitty Benzar, President of WSNFC, said: “These requirements could be met merely by placing a porta-potty and a picnic table next to a bulletin board and calling it a day use site. They could even skip the picnic table if they interpret ‘trash collection’ as merely an occasional clean-up, not the provision of a
container that gets emptied regularly.”
The language of HR5204 is open to inter-
pretation in far too many places. Terms like “sites,” “concentrated public use” and “sub- stantial Federal investment” are not specifi- cally defined and vulnerable to abuse. “Man- aged primarily for outdoor recreation pur- poses” could mean pretty much anywhere. This legislation sets the stage for the USFS and other land management agencies to add substantially to their financial coffers by charging visitors for nearly every conceived
use of public lands.
HR5204 would also eliminate the use of
Recreation Resource Advisory Committees (RecRACs) as part of the public notification process for changes to fees and fee areas. This is no big loss because RecRACs have been ineffective at policing fee abuses by land agencies. They have served as a public process in name only and have been more of a rubber stamp for agency requests. But the language that covers alternate public pro- cesses is also lacking in substance.
New fee requests would require an “Act of Congress” to be imposed but that might not be as impressive as it sounds. Ms. Benzar said that “sounds like a big deal, but would likely take the form of a rider on some must- pass piece of legislation like an appropria- tions bill, so approval of new and increased fees would likely be automatic and not un- dergo any public debate.”
The legislation provides that fee changes and requests “may” be published in the Fed- eral Register for a public comment period — but that implies that they may not, too. And the USFS, for example, has shown in the past that it isn’t necessary to take public com- ments to heart if they do not agree with the proposed agency plan. The Act of Congress requirement also means that anything pub- lished for public comment may have already received Congressional approval so any pub- lic input might already be moot.
While the fact that HR5204 did not make it into the current Continuing Appropriations Resolution is cause for celebration, fee oppo- nents will be keeping a close eye on it and any other proposals regarding recreation fees for public lands. Another year of FLREA doesn’t mean we are out of the woods.
| Cindy Cole is getting her walking stick primed. cindycole@live.com
10 • OCTOBER 2014 • the NOISE arts & news • thenoise.us
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