Page 9 - the NOISE December 2012

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NEwSFEATURE
paving paradise amenities amuck!
stOry & pjhOtO
by cindy j. cOle
trict is confident that, despite the opinion of the 9th Circuit Court and a US Magistrate Judge, fees in the Sedona area are in compliance with federal law. However, the Deputy Chief of the National Forest System, Leslie A. C. Weldon issued a memorandum in May that seems to indicate some wavering on this confidence at a national level.
Earlier this year, the United States Forest Service ceased using the High Impact Recre- ation Area nomenclature to describe areas like Sedona that are heavily used by forest visitors. After the Smith decision, it was determined that large areas with no amenities would no longer qualify as fee areas in total. The 97 HIRAs across the country were reduced to 24 Standard Amenity Recreation Fee Areas. Changes to the Red Rock Pass system were meant to reflect this new designation. However, you can call an apple a pear but it is still an apple at its core.
In a memo issued by the USFS’ Deputy Chief in May 2012, Regional Foresters were instruct- ed to “not enforce standard amenity recre- ation fees or issue notices of required fees for any portion of a large area that has been pro- posed for elimination from the recreation fee program. If a large area is being divided into smaller areas with a single recreation site or tight cluster of sites, ensure that all these sites contain all the required amenities and services before continuing to enforce fees or issue no- tices of required fees at those sites.”
Interim guidelines that accompanied this memo indicated all signs stating that fees are required should be removed from areas where fees would not be enforced. It also states that
“for large areas where fee enforcement will change, post a notice at the entrances to those areas and at recreation sites within those areas that indicates where recreation fees will and will not be enforced.” It is unclear whether signs of this nature have been posted anywhere in the country. While some signs have been re- moved in Sedona, such as along the Upper Red Rock Loop Road, which was removed from the Red Rock Pass by the February changes, most signs appear unchanged around the district.
So why all this confusion about where fees will and will not be enforced? I asked Mr. Smith what he thought about the new Red Rock Pass and, in particular, the changes being made to the Vultee Arch area where he was ticketed. Mr. Smith stated that “the revised Red Rock Pass Program doesn’t comply with the recent Mt. Lemmon decision by the Ninth Circuit Court. A judge would be bound by judicial precedent to dismiss any ticket that was challenged in court by a forest user who goes hiking without pay- ing a fee and who doesn’t use the facilities and services. This applies to trails along the Vultee Arch Road and anywhere else on National For- est lands.”
So, essentially, Regional Foresters have been instructed not to issue tickets because it has become incredibly unlikely they will be able to defend those tickets in court. And, as long as tickets are not being issued, forest users will never get their day in court the way Mr. Smith did. But recreation advocates who oppose the fee system and want to see the recent court decisions upheld in forests across the country are not taking USFS’ lack of compliance lying down. Two additional lawsuits have been filed that challenge the Forest Service’s continuing collection of fees that the courts have already disapproved.
In September, five individuals and a non- profit organization filed a lawsuit in Washing- ton, DC calling into question the USFS’ prac- tices regarding private concessionaires and recreation fees. The five plaintiffs include two individuals from locations in Arizona and oth- ers from Colorado and Oregon who are work-
ing with the Western Slope No-Fee Coalition based in Durango, Colorado. Bark, a non-profit organization and watchdog group for the Mt. Hood National Forest in Oregon, is also named in the suit.
In this civil suit, the plaintiffs are challenging USFS policies that allow private concession- aires to charge fees the agency itself is not al- lowed to impose. These include fees solely for parking and for access to undeveloped areas and scenic overlooks. In addition, it questions the ability of concessionaires to establish and charge fees that have never undergone the public approval process and to reject federal recreation passes that the USFS must accept.
On October 23, four California hikers filed a suit in the Los Angeles District Court challeng- ing the “Adventure Pass” required in the Ange- les, Cleveland, Los Padres, and San Bernardino National Forests. The hikers have asked the court to relieve them from having to pay a fee to park on these forests when they want to go hiking, even when they don’t use the available amenities.
Sound familiar, Sedona? The “Adventure Pass” system is nearly identical to our own Red Rock Pass. And though the court has ruled that fees are not required from those who sim- ply park their car to go hiking and do not use developed facilities, signs stating that “parked vehicles must display a valid recreation pass” still abound throughout the Red Rock Ranger District.
Changes to the Red Rock Pass and consider- ation of any new fees must go before the Ari- zona Recreation Resource Advisory Commit- tee. The RecRAC is a citizen’s advisory board that was created following the implementation of FLREA. A RecRAC, according to FLREA, “may make recommendations ... regarding a stan- dard amenity recreation fee or an expanded amenity recreation fee, whenever the recom- mendations relate to public concerns.”
There are 15 members on the Arizona Rec- RAC and they come from all over the state. The RecRAC can make recommendations to the Forest Service as to support or non-support of their fee proposals but they do not make any actual decisions. Final decision-making au- thority lies with Southwest Regional Forester, Corbin Newman.
The Arizona RecRAC met in August 2011 re- garding the proposed revisions to the Red Rock Pass. The committee generally supported the planned changes to the pass system but had some reservations, even before the Mt. Lem- mon case was decided, about the lack of provi- sion for fee exemptions for activities specifical- ly excluded in FLREA. One of the committee’s recommendations at that time was that there should be some provision for free parking for hikers who do not use amenities that are pres- ent at a given site. The Red Rock Ranger District has not made any provisions for this type of fee exemption.
The Arizona RecRAC meets on November 29 and 30 in Phoenix. On the agenda are recre- ation fee programs on the Tonto and Coronado National Forests. In addition, the settlement agreement for the Mt. Lemmon case is sched- uled for presentation. This writer plans to at- tend the meeting and press the RecRAC to do everything in its power to require the Red Rock Ranger District to comply with federal law and the decisions handed down by the courts.
| Cindy Cole will continue to ex- ercising her right to park & hike in
our beloved red rocks without pay- ing a cent. cindycole@live.com
if you’ve been hiking in the Vultee Arch area recently, your serenity may have been dis- turbed by the sound of bulldozers and heavy construction equipment. On September 18, 2012, the Coconino National Forest an- nounced in a press release that they would be installing a “day use recreation” area off of Vultee Arch Road (FR 152). The first quarter- mile of the road and a parking lot are being paved to create the new Dry Creek Vista Trail- head. Just a few miles up the road, the Vultee Arch Trailhead provides access to the Red Rock- Secret Mountain Wilderness area, whose bor- der runs parallel with Vultee Arch Road.
The new trailhead “will provide day use rec- reation, a restroom facility and access to some very popular trails.” In addition, “this site is proposed to be included in the Red Rock Pass program once complete, and will provide all recreation amenities required for a day use fee area under the National Recreation Enhance- ment Act.”
Apparently, the Coconino National Forest Supervisor is still ignoring the 9th Circuit Court’s Mt. Lemmon decision and will continue to de- velop areas of the Red Rock Ranger District in an attempt to exact additional fees from forest visitors, even after the court has ruled some of those fees to be illegal.
In February 2012, a unanimous three-judge panel of the federal 9th Circuit Court of Ap- peals struck down the Forest Service’s fee pro- gram at Mt. Lemmon near Tucson, Arizona. The judges said the law does not allow the Forest Service to charge fees for parking, trailhead ac- cess, or visiting undeveloped parts of our Na- tional Forests.
Eight days prior to the landmark Mt. Lem- mon decision in February, the Ranger District announced that it was rolling out a revised Red Rock Pass program. The new program incorpo- rates two fee “areas” and seven stand-alone fee
“sites” where a Red Rock Pass is still required for parking at trailheads or along roadsides and for using any of the provided amenities.
Jim Smith, a Sedona local, was the catalyst for change in Sedona’s national forests. He had challenged a ticket he received for parking at the Vultee Arch Trailhead, an undeveloped area of the Ranger District, and not displaying a Red Rock Pass. Mr. Smith’s ticket was dismissed by
US Magistrate Judge Mark E. Aspey.
Recreation fees are authorized by the Fed-
eral Lands Recreation Enhancement Act of 2004 (FLREA). Judge Aspey wrote that “the FLREA is an extremely comprehensive and precise statutory scheme clearly delineating specific instances in which the public may be charged an amenity fee for use of the Nation- al Forests, and other public lands, and quite plainly prohibiting the agency from establish- ing any system which requires the public to pay for parking or simple access to trails or unde- veloped camping sites.”
In Mr. Smith’s case, there were no ameni- ties present at the trailhead where he parked his car so his ticket was dismissed on those grounds. The Mount Lemmon decision took things one step further. It upheld the provision in FLREA that states that a forest visitor cannot be charged a fee for simply parking to go hik- ing or picnicking by the side of the road when they do not use amenities that are provided.
FLREA expressly prohibits fees “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.”
The Mount Lemmon case was decided in the 9th Circuit Court of Appeals which includes the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Wash- ington. This makes the decision binding it at least those states but it also sets a national precedent for forests across the country. But, in Sedona, the Red Rock Pass program has con- tinued with business as usual.
In fact, Connie Birkland, Public Affairs Spe- cialist for the Red Rock Ranger 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.” The district has continued to collect fees for activities for which fees are not required, according to feder- al courts. And the Ranger District continues to develop sites in the forest with the idea of col- lecting fees at those sites in mind at the outset.
It would seem that the Red Rock Ranger Dis-
thenoise.us • the NOISE arts & news • DECEMBER 2012 • 9