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Ninth Circuit Court of Appeals rules that the agency can’t charge people for roadside picnics, or parking and hiking in undeveloped areas
A federal court of appeals ruling makes clear that the Forest Service can't charge fees simply for parking at a trailhead and hiking.
By Summit Voice
SUMMIT COUNTY — The U.S. Forest Service can’t charge recreation fees for simple access to public lands, the Ninth Circuit Court of Appeals ruled unanimously last week, rejecting the agency’s bid to include undeveloped areas in the fee program.
The San Francisco-based Appeals Court found the U.S. Forest Service at fault for charging parking fees to people who go for a hike without using amenities such as picnic tables, trashcans and bathrooms located nearby, or who camp in dispersed, undeveloped parts of a National Forest.
If the ruling stands, it will be binding in nine western states and sets a nationwide legal precedent. The ruling doesn’t cover Colorado, but the fee program at Mt. Evans is currently being challenged in the Tenth Circuit Court of Appeals — which does cover Colorado, and the recent ruling out of San Francisco could be a factor in that case.
Even before the ruling, the Forest Service was reviewing fee sites for compliance with the law, with a top-level panel recommending that some sites be removed from the program.
At issue is the agency’s Federal Lands Recreation Enhancement Act, designed to help fill holes in the Forest Service recreation budget. Under the program, the agency can charge fees for certain areas as long as specific amenities are provided.
Initially, the Forest Service tried to include a wide range of areas under the program, for example charging fees to everyone who enters large recreation areas, even if those people don’t actually use the developed sites.
Several groups, first and foremost the Western Slope No-Fee Coalition, challenged the way the agency interprets the law, and the appeals court agreed:
“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,” wroteJudge Robert Gettleman. “Everyone is entitled to enter national forests without paying a cent,” he said.
The case (Adams vs. U.S. Forest Service) was brought in 2008 by four hikers who visit the Coronado National Forest around Mt. Lemmon, near Tucson. A district court judge upheld the fees, giving the agency deference under the Administrative Procedures Act.
But the appeals court overturned that ruling, finding that the law doesn’t require a deferential decision, according to attorney Mary Ellen Barilotti, of Hood River, Oregon, who has been involved in numerous fee-related court battles.
The court found the Forest Service at fault for charging parking fees to people who go for a hike without using amenities such as picnic tables, trashcans and bathrooms located nearby, or who camp in dispersed, undeveloped parts of a National Forest.
Forest access fees began in 1996 under the Fee Demo program. They include the Adventure Pass, which covers much of the four National Forests in southern California, the Northwest Forest Pass, required at hundreds of trailheads in Oregon and Washington, the Red Rocks Pass at Sedona, Arizona, American Fork Canyon near Provo, Utah, Mt Evans Scenic Byway in Colorado, and dozens of other forest fee programs around the nation.
In 2004, Fee Demo was replaced by the Federal Lands Recreation Enhancement Act enacted by Congress for ten years. The FLREA clearly prohibited fees solely for parking and hiking, but the U.S. Forest Service continued operating fee programs around the country that did just that.
“Millions of Americans will once again be free to go for a walk in their national forests, which they jointly own and which have been maintained by their tax dollars for over a century, without being ticketed by Forest Service staff,” said Western Slope No-Fee Coalition president Kitty Benzar.
The Forest Service is studying the ruling, and has 60 days to request a rehearing.
Filed under: Colorado, forests, public lands, Summit County Colorado, Summit County news, US Forest Service Tagged: | FLREA, forest service recreation fees, national forests, Ninth Circuit Court of Appeals, U.S. Forest Service, Western Slope No-Fee Coalition
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I support the majority of National Forest policies, actions, and projects. All of these programs require funding and careful management. Many of them are at risk due to the cutbacks that are occurring in the federal budget, and fees are one of the avenues that the Forest Service is exploring to maintain a proper level of control.
The USFS is not the only beneficiary of public use and access to the forests – local communities benefit from the visitation and activities of forest users. Primary among these activities is OHV use.
Motorized recreation is a carefully managed activity under the Travel Management Rule. It is a critical element in management and planning for the National Forests, and needs to be expanded and encouraged under the current guidelines to remain a billion-dollar contributor to Colorado’s economy and provide desperately needed funding to the agency. The vital forest resources cannot be maintained without a healthy and active OHV constituency, and that constituency cannot be maintained without extensive availability of well-managed and maintained roads and trails.
It is time for the anti-OHV crowd to understand that this form of recreation is vital to their interests, and work with OHV associations to achieve conservation and environmental protection. Elimination of motorized access is not in anyone’s best interest. We can only save our forests by working together.
Multiple use trailheads, better education programs, and improved communications will achieve many of these objectives. It is time that these goals become the focus of the debate, not closures and restrictions – especially now, when fees are made illegal by court decisions and the only users who pay their way are the members of the OHV community. Government and community leaders need to consider this in every decision they make. The media needs to encourage this degree of cooperation. It is vital to everyone involved.
During the Reagan years, the plum campgrounds were surrendered with favorable subsidies to private campground management companies who tripled campground fees for private profit. Concessionaires and resource extractors have been making billions, while public funding for forest services has collapsed. Forest Service managed campground fees have not kept up with inflation and are over-strapped by citizen-control oversight committees that presumably want camping subsidies to come from general tax revenues. While a great victory for those who rough-it in the backcountry at dispersed campsites, reducing subsidies from hikers to those who sit in developed campgrounds and create high maintenance costs without ever getting up a trail, the problem of public lands management costs is not resolved.
There is a serious problem here in that if fees are eliminated from the Angeles National Forest, large areas will have to be closed due to ever-worsening funding which has seen USFS budgets cut 4 times in the past 4 years while paid employees have been repeatedly laid off and seasonal Summer help has not been hired due to such deep cuts.
Recreation continues to be among the lowest priority issues among Washington politicians in a nation where our citizens are increasingly over weight, unhealthy both physically and mentally, and the economic woes of our nation increasingly need quiet spaces where citizens can go for solace from worry and grief.
When Forest Service Districts are finding it difficult to find funding to even provide toilet paper for the toilets, eliminating the meager and minimal fees that provide even that much infrastructure could very well mean forests will need to close. Eliminating such fees does not mean increasing the number of people utilizing recreation, it means increasing the number of forests and parks from coast to coast that have had to close due to overwhelming budget shortfalls.
Fred, you said,
” . . .ever-worsening funding which has seen USFS budgets cut 4 times in the past 4 years . . .”
I’m not sure where you got that information. In fact the Forest Service’s appropriated funding (which is not the same thing as the administration’s budget proposal) has been increased over 75% since 1999. Between FY2011 and FY2012 they were kept flat, which is doing really well compared to a lot of other agencies. The fundamental problem is that 80% of what Congress gives them for recreation disappears into administrative overhead. When a District gets a cut in their recreation funding that cut is being instigated by their Regional and/or Washington office, not by Congress. It probably looks about the same to the poor District Ranger, but he needs to talk to his management about that, not just stick his hand in the public’s wallet.
From GAO-09-443t:
“Regarding its performance, the agency has not always been able to provide Congress and the public with a clear understanding of what its 30,000 employees accomplish with the approximately $5 billion the agency receives every year.”
When does Serve the people come and not rob the people stop.
Fred: Outrageous to think that the forest should be “closed” to people just because there is no money given to another group of people to do things that are not essential to the enjoyment of the forest.
This touches on a point that hasn’t been addressed: the USFS may say the fees are only applicable in parking lots, but then they go and put up “NO PARKING” signs everywhere else, and put piles of rocks to prevent parking in those areas. This is limiting my access to places I want to visit by fiat, and frankly makes it more likely these places will be taken over by pot farmers.
Fred: You make an interesting case….no money..no amenities…but fees are not the only way. Sometime when you have a few minutes, google USFS accountability and you will see they waste as much money as any govt. agency. Even the GAO said their bookkeeping and accountability is one of the worst…So don’t make it a one way street….no fees…..no fun……because it doesn’t have to be that way. Take a look at the USFS motto and you will see how unbalanced and prejudice they are with their money and services…
Also, the USFS would hand pick citizens to be on their fee approval committees…kinda like the fox guarding the chicken house.
m
get the foxs out of the houses
fees rob the taxe payers we have the right to ride horses on the public land that we allready payed for over and over fee is not the way!!!!!!!!!!!!!!!! thay get the money we get less