Fed Judge rules against forest user fees

[willstrickland]

FYI:

 

U.S. judge's ruling could end forest user fees

By Tony Davis

ARIZONA DAILY STAR

Tucson, Arizona

 

A federal magistrate's ruling could end, or scale back the scope of, the $5 daily user fees charged on Mount Lemmon and in Sabino and Madera canyons.

The case could set a national precedent, possibly ending fees in other national forests around the country, said the chief Forest Service official for the Mount Lemmon-Sabino Canyon area.

It could also mean cutbacks in maintenance and improvements of picnic grounds and campsites, and possible closure of some facilities because the fees generate hundreds of thousands of dollars annually that are plowed into recreation areas, the forest official said.

Magistrate Charles Pyle dismissed Forest Service charges last week against a Tucsonan who got $30 tickets twice in the same month for failing to pay fees when parking and hiking on different spots on Mount Lemmon.

Pyle ruled that the Forest Service went beyond its congressional authorization when it charged fees for parking to use a trail, for roadside or trailside picnicking, for camping outside developed campgrounds and for roadside parking in general.

For hiker Christine Wallace, a legal secretary who says she finds Mount Lemmon "a spiritual place . . . where I connect with nature," Pyle's ruling was exciting because it could ultimately end what she says is a system of double taxes for public-land users.

"I was the one who was out there on the line," Wallace said Tuesday. "I'm excited that the charges were dismissed. More than that, I'm excited at the way the judge reacted to our testimony, our motions, our exhibits. He did research on his own. He put a lot of thought into it."

The federal government hasn't decided whether to appeal the ruling. But if the ruling stands, it appears that the Forest Service will have to charge fees only for use at specific sites — not for driving up the mountain and parking at certain areas, as it does now.

Opponents of the fees both locally and nationally call Wallace's case a landmark. They say she is the first person to have legally challenged a Forest Service ticket by failing to pay the fee since a 2004 law was passed restricting the Forest Service's ability to charge such fees.

"The Forest Service has not carried out the law. . . . We've hesitated until now to use the word illegal because only courts can decide what is legal, but now I feel free to use the word illegal in regards to (the fee on) Mount Lemmon," said Kitty Benzar, co-founder of the Western Slope No Fee Coalition, based in Durango, Colo.

About 4,505 national forest sites across the country had been charging fees until the 2004 law passed, although 435 such sites had fees eliminated because of the new law's restrictions, U.S. Department of Agriculture Undersecretary Mark Rey testified to Congress last year.

The Tucson ruling could spell an end not only to the fees, but to the Forest Service's ability to repair and upgrade campgrounds, picnic areas and toilets on Mount Lemmon, said Larry Raley, district ranger for the Santa Catalina Ranger District. The fees raise $700,000 annually for Mount Lemmon and Sabino Canyon.

Raley said that if some or all of the fees go away, some picnic areas may be closed and pay toilets could appear on the mountain, among other changes and cutbacks.

He said he doesn't think that Congress will appropriate more money to make up the difference, since those appropriations have dropped 50 percent to 75 percent over a decade.

"I don't believe it is a double tax," Raley said. "Money collected from that area goes to picnic tables, bearproof containers and all the restrooms in that area. Several campgrounds and campsites have been rebuilt."

The Forest Service will keep charging the fees as long as the legal case is unsettled, but Benzar predicted that many people won't pay from now on.

"I guess there will be a showdown," Benzar said. "They'd have a lot of nerve to keep ticketing people. It will be ugly."

This ruling brings to a head a bitter debate over the user fees that has intensified over a decade. A 1996 federal law first gave the Forest Service the right to charge fees under what was then called a demonstration program. The service started charging for Mount Lemmon in 1997, at Sabino Canyon in 2001 and at Madera Canyon in 2002.

Federal officials said they had no choice but to collect fees, because attendance at popular recreation sites had mushroomed while agency budgets were pared. Opponents said that charging people to walk on public lands was unfair when mining and timber companies and ranchers paid below-market fees to take out copper, cut timber and graze their cattle there.

Wallace, who has lived in Tucson 35 years, hikes somewhere in the Tucson area at least once a month. At first, she paid the Mount Lemmon fees. She decided to stop paying in about 2002 after being convinced by arguments of no-fee advocacy groups that the fees aren't fair, she said. She also grew to believe that the fees were part of a broader effort toward privatization of what she feels are essential government services, including schools and prisons.

After parking on the mountain 10 to 15 times without getting a ticket, she got tickets twice in September 2005 for parking near the General Hitchcock Campground and at the Marshall Gulch Picnic Area, both times so she could hike popular trails.

Rather than paying the $30 fines for each ticket, she decided to contest them in court. She drew support from the no-fee coalition and got an attorney from Santa Barbara, Calif., who specializes in court appeals of user-fee tickets.

"I just didn't think it was right to have to pay," Wallace said.

[madrasrock]

I do not think this will repeal the TITLE VIII--FEDERAL LANDS RECREATION ENHANCEMENT ACT. The act has very detailed conditions for charging and who you can charge. I think the judge is saying USFS you must obay the law.

The bad thing is I think we will be living with it for the next ten year. But the Good thing if we make the USFS obay the law it will be tolarable. So down load it Read it and carry it with you.

http://www.fs.fed.us/recreation/programs/feedemo/fee_legislation.html

If you have to read it to the USFS. I am not shure if they know how to read.

[ken4ord]

That is some of the best news I have heard for a long time. Though now they are thinking of ways to still charge people with ideas like pay toilettes. Rather than trying to figure out how to nickle and dime it out of peoples pockets, they should learn how increase government spending on park services or figure out how to charge private business more that uses public lands.

[Bug]

Damn leberals. Why don't you understand Reaganomics?

[Crux]

That is some of the best news I have heard for a long time. Though now they are thinking of ways to still charge people with ideas like pay toilettes. Rather than trying to figure out how to nickle and dime it out of peoples pockets, they should learn how increase government spending on park services or figure out how to charge private business more that uses public lands.

They can nickle and dime on their knees, the way they did when hired.

[archenemy]

That is some of the best news I have heard for a long time. Though now they are thinking of ways to still charge people with ideas like pay toilettes. Rather than trying to figure out how to nickle and dime it out of peoples pockets, they should learn how increase government spending on park services or figure out how to charge private business more that uses public lands.

Agreed.

DRAFT:

Charge each business $25,000 to submit a permit request--just like private folks have to pay $20 for a permit to get a couple of lousy cords. Same system, doesn't need much to run it.

[dt_3pin]

It looks like the magistrate judge's decision was overruled. I haven't read the opinion for details, but here's an article sumamrizing

 

 

Ariz. judge sides with Forest Service on recreation fees

 

A federal judge in Arizona has overturned a magistrate judge's ruling that threatened to limit federal land managers' ability to charge recreation fees on public lands.

 

District Court Judge John Roll affirmed the Forest Service's ability in a ruling last week to charge a recreation fee based on the Federal Lands Recreation Enhancement Act (FLREA). Last September, Magistrate Charles Pyle dismissed two $30 tickets against Christine Wallace. The Forest Service gave Wallace the tickets for not paying the required parking and hiking fees at Arizona's Mount Lemmon High Impact Recreation Area (Greenwire, Sept. 14).

 

The magistrate ruled FLREA prohibits charging a recreation fee "solely for parking, undesignated parking, or picnicking along roads or trailsides," but the Justice Department and Forest Service say Wallace was cited because she used the recreational facilities (i.e. went hiking). The fee is simply assessed by vehicle.

 

The magistrate's ruling "significantly undercuts the agency's ability to impose fees in the manner intended by Congress for the use of facilities" in high-impact recreation areas, DOJ said in a brief last fall.

 

Nicknamed the Recreation Access Tax (RAT) by opponents, the FLREA was included as a rider on an omnibus spending bill in December 2004 at the behest of Rep. Ralph Regula (R-Ohio) and with the support of the Bush administration. The law was the successor to the "fee demo" program the agencies had operated under since fiscal 1997, when it was also established via a Regula rider to spending legislation.

 

In the two years since FLREA was approved, the Forest Service has removed over 10 percent of its 4,068 sites from the recreation fee program.

 

Regardless, several state legislatures, including Alaska, Colorado and Oregon, and county and municipal governments have passed resolutions opposing the law and calling for its repeal. With a Democratic Congress and several GOP allies who oppose charging entrance fees to Western federal lands, Robert Funkhouser, president of the Western Slope No-Fee Coalition, is calling for oversight and a possible FLREA repeal.

 

"I would hope Congress would go back and take a look at it," Funkhouser said. "We're calling for a repeal."

 

In his ruling, Roll noted the congressional record of FLREA "indicates that Congress was concerned that the Forest Service would attempt to charge an entrance fee for access onto federal recreation lands where federal services are not provided," something Funkhouser and critics say has already happened. However, Roll said the agency's interpretation of FLREA and regulations were within the intent of the law.

 

Roll sent the case back to the magistrate for trial and sentencing. Wallace may appeal the ruling to the 9th U.S. Circuit Court of Appeals.