Sedona AZ (February 19, 2013) – If you visit National Forests that have been charging you a “standard amenity” fee since 2005 to visit a High Impact Recreation Area (HIRA), you should no longer have to fear getting a ticket if you don’t pay that fee, unless you actually use developed facilities and services that meet minimum legal standards.
HIRAs have been an important part of the largest fee programs in the country, such as the Adventure Pass in southern California, the Northwest Forest Pass in Washington and Oregon, the White Mountains parking pass in New Hampshire, and others. You can see a list of all the HIRAs at this link.
Forest Service Deputy Chief Leslie Weldon issued a memo last May to all forests, which the WSNFC obtained under the Freedom of Information Act. The memo said:
“I am directing that you not enforce standard amenity recreation fees or issue notices of required fees for any portion of a large area that has been proposed for elimination from the recreation fee program.”
The places within HIRAs that were “proposed for elimination from the recreation fee program” were identified in letters from the Washington Office to the Regional Foresters based on an internal review conducted in 2011. That review, in turn, was based on the Forest Service’s interpretation of the Federal Lands Recreation Enhancement Act as allowing them to charge a standard amenity fee any place that six required amenities are present (table, trash, toilet, interpretive display, developed parking, and security), regardless of whether the amenities are actually used or not and regardless of how scattered or distant they might be.
Turns out, that interpretation was wrong.
In February, 2012, about a month after the agency had completed their internal review, a unanimous three-judge panel of the federal appeals court for the 9th Circuit invalidated their review criteria. The judges ruled that the section of the law that prohibits fees for general access, passing through without using facilities and services, or camping in undeveloped areas actually means what it says!
“. . . the REA clearly contemplates that individuals can go to a place offering facilities and services without using the facilities and services and without paying a fee.” (Decision in Adams v USFS)
The Deputy Chief’s May memo came three months after the court provided that clear guidance, yet she still directed the forests to stop enforcing fees only where the amenities are not present, regardless of whether a visitor actually uses them or not or how scattered they are.
That approach obviously appears to violate the law, but when a federal agency is violating federal law, you can’t just call the sheriff and have the district ranger arrested. As a citizen, your only recourse is to file a lawsuit. And that is what a number of concerned and committed citizens have done.
So far, there have been four lawsuits challenging the Forest Service’s continued parking fees at locations far from some of the required amenities and even if the visitor is off in the backcountry hiking or horseback riding, boating on a river or lake, or camping in a dispersed area with no developed facilities.
Two of the lawsuits have been settled out of court, with the Forest Service making significant on-the-ground changes to bring the HIRAs named in the suits – and only those – into compliance.
•At Mt Evans in Colorado you no longer have to pay to drive on or park alongside State Highway 5. Instead, you only need to pay if you park at either of two developed interpretive sites or at a Denver city park located on the mountain where the city contracts with the Forest Service to collect a parking fee on their behalf. Other than at those three small sites, the 14-mile-long state-owned and state-maintained highway is now free and open for the public to enjoy the scenery and for access into the adjacent Mt Evans Wilderness Area.
•At Mt Lemmon in Arizona, you no longer have to pay for access to all land within 1/2 mile of the Sky Island National Scenic Byway. Instead, you only need to pay if you use one of nine developed picnic sites or visit the interpretive center. If you are using a trail that begins in one of these developed sites, free parking has been designated for your use and you can park for free on the road shoulders if the designated free parking is full.
These changes, reached by mutual agreement in out-of-court settlements, have brought those two former HIRAs into compliance with the law as interpreted by the courts. But in the rest of the nation’s national forests, fees are still being charged based on the law as interpreted by Forest Service officials before they were corrected by the 9th Circuit.
Even under their flawed interpretation, the Washington Office seems to be having trouble getting the Regional Foresters to do as they are told. Documents obtained by the WSNFC under the Freedom of Information Act show that in October 2012, the Deputy Chief sent out a follow-up to her May memo instructing the Regions to report to her by November 15 what they had done to comply with her May directives. In an enclosure to that follow-up memo Weldon said:
•”Beginning immediately [October 10, 2012] the region will no longer issue Notice of Required Fee, Violation Notice, or Citation for non-payment of recreation fees at sites or areas where fees will be eliminated as a result of the SAF [HIRA] Area review. This will be communicated internally only with an emphasis on ensuring that no citations are written at sites/ areas where fees will be eliminated.”
•”Move forward immediately with installing, removing, and moving fee related signs on the applicable forests.”
•”Notify the public that beginning January 1, 2013, fees will not be enforced at sites and areas identified for removal in the SAF Area review. Without this advance notification many people who have purchased annual (ex. Adventure) Passes may be upset when they learn that their favorite sites/ areas for which they purchased an (ex. Adventure) Pass are now free. This could result in a large number of requests for refunds, which the region may not be able to accommodate, and an increase in the number of complaints resulting in potential negative press.” [emphasis added]
So far, silence.
Thus it’s back to court again – the only recourse available when an agency is not following the law.
The third lawsuit, challenging the implementation of the Adventure Pass on four forests in southern California – the Angeles, Cleveland, Los Padres, and San Bernardino – has been put on hold by the court until April 1 to allow confidential settlement discussions, which are currently underway.
This week, another suit was filed, this one against the Sequoia National Forest in central California, challenging the implementation of the Southern Sierra Pass at Lake Isabella and along the lower Kern River.
Despite persistent citizen action, negative publicity, and as a last resort, litigation, the Forest Service has yet to get all their fee programs into compliance with the law or to notify the public that they have stopped enforcing fees at many sites, even if the “fee required” signs are still up.
While the pending lawsuits run their course, here is something you can do: Learn what the law says and don’t buy passes or pay fees for activities that the agencies are not authorized to charge you for.
This is what you may not be charged a fee for on National Forests or BLM lands:
(A) Solely for parking, undesignated parking, or picnicking along roads or trailsides.
(B) For general access . . .
(C) For dispersed areas with low or no investment . . .
(D) 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.
(E) For camping at undeveloped sites that do not provide a minimum number of facilities and services [at least five of these nine things: table, toilet, fire ring, trash container, designated sites, drinking water, access road, security, fee collection by an employee or agent]
(F) For use of overlooks or scenic pullouts.
The Forest Service memos reveal that they are deeply concerned that if you have purchased an annual pass such as the Adventure Pass or Northwest Forest Pass you are going to learn your rights and demand a refund.
Which of course you should.
But better still, don’t buy that pass in the first place if you are not going to be using developed facilities or if the facilities don’t meet minimum standards. Don’t reward bad behavior.
IN OTHER NEWS . . .NEW FEES FOR SURE; NEW LAW MAYBE
After a long period without much new fee activity, both the Forest Service and BLM have been picking up the pace. Here are some fee proposals that are in the pipeline or have been recently approved:
•Red Cliffs Recreation Area, BLM St George, Utah: fee increase and expansion of the fee area to encompass a site that is currently free;
•San Juan River, BLM Monticello, Utah: fee increase for river permits and a new fee to apply for a launch date reservation;
•Desolation Canyon, BLM Price, Utah: restructured fees for rafting permits and launch date reservation system outsourced to recreation.gov;
•Butte, Montana BLM sites: new or increased fees at Henneberry Homestead, Holter and Hauser Lakes, White Sandy Day Use, and camping on the Upper Big Hole River;
•Tonto National Forest, Arizona: review of the Tonto Pass program with possible fee increases or conversion of recreation sites to concessionaire management;
•Imperial Sand Dunes, BLM El Centro, California: drastic fee increases despite BLM’s persistent failure to address concerns about excessive cost of collection, questionable visitation data, and implementation as an entrance fee, which is prohibited by law;
•Ruby-Horsethief Canyon, BLM Grand Junction, Colorado: new fee for rafters for undeveloped camping along the Colorado River;
•North Fruita Desert, BLM Grand Junction, Colorado: new fee for mountain biker campground;
•Birch Creek camping, BLM Idaho Falls, Idaho: new fee for reserved camping for group sites;
•Aguirre Spring, Dripping Spring, Three Rivers Petroglyphs, BLM Las Cruces, New Mexico: fee increases for camping and day use;
•National Forests of North Carolina: fee increases at Cedar Point and Arrowhead Campgrounds, Canebrake Horse Camp, Sliding Rock Recreation Area, and the Dirty John and Panther Top Shooting Ranges. New fee at Moss Knob Shooting Range;
•Big Horn National Forest, Wyoming: Pole Creek Cabin and Sheep Mountain Lookout to be converted to nightly rentals.
Meanwhile, the current fee law is approaching its ten-year sunset date of December 8, 2014. It is likely that if Congress decides to renew or replace it they will do so in 2013, and we have begun to brief members of both Houses about our concerns, in hope that new legislation can be crafted that will work better for both the public and the land management agencies.
However if they do nothing by the sunset date, fees will not go away. Instead, the agencies say, there will be no law restricting their fee authority and they will take that as permission to charge fees to anyone, in any amount, for anything, anywhere.
If that thought sends a chill down your spine, TAKE ACTION. Write, call, or fax today to the oversight committees in the House and Senate, with copies to your Senators and US Representative and ask them to make recreation fee reform a priority this year!
The committee contacts are:
- US Senate Energy and Natural Resources Committee
- US House of Representatives Committee on Natural Resources
You can find contact information for your Senators at www.senate.gov and for your US Representative at www.house.gov.
This SedonaEye.com article was written by Kitty Benzar of the Western Slope No Fee Coalition, Denver, Colorado. Benzar writes, “The WSNFC is a broad-based organization consisting of diverse interests including hiking, biking, boating, equestrian and motorized enthusiasts, community groups, local and state elected officials, conservatives and liberals, Republicans and Democrats, and just plain citizens. It’s stated goals are to eliminate recreation fees for general access to public lands managed by the Forest Service and Bureau of Land Management; to eliminate backcountry fees and interpretive program fees in National Parks; to require more accountability within the land management agencies; and to encourage Congress to adequately fund our public lands.”
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