FS Loses Another Fee Case

Below’s the press release, the links in it are active if you click here.

My two cents is that good environmental policy would encourage people at popular sites to use bathrooms, not to “despoil” the “wilderness” by strewing bacteria and nitrates hither and yon and claiming that they therefore should not be charged. But that’s up to Congress to develop a good policy, not (dare I say) the courts. IMHO.

PARKING FEES IN NATIONAL FORESTS STRUCK DOWN – AGAIN

In a ruling issued April 28, 2014, Senior U.S. District Judge Terry J. Hatter Jr. found that the United States Forest Service cannot charge fees to visitors who park their vehicles and head off down the trail without using any developed facilities, such as picnic tables and bathrooms, that may be adjacent to the parking area.

“This ruling is a victory for the American public, be they hikers, equestrians, hunters or fishermen. The nationwide fee law has clearly prohibited fees solely for parking since 2004, and the U.S. Forest Service should now cease charging these fees immediately, across southern California and beyond,” said Alasdair Coyne, Conservation Director of Keep Sespe Wild and one of the four plaintiffs in the case.

The Forest Service has been levying such fees, and ticketing parked cars, at trailheads and roadside pullouts since 1996 under a program called the Adventure Pass which encompasses all four National Forests in southern California: the Angeles, Cleveland, Los Padres, and San Bernardino. The Adventure Pass began as an experiment called Fee Demo, which allowed recreation fees to be charged without restriction for any activity. Many Fee Demo fees were extremely unpopular, particularly the requirement to buy a pass merely to park and go for a hike in the woods. In response to rising complaints, Congress repealed Fee Demo in 2004 and replaced it with the Federal Lands Recreation Enhancement Act (FLREA).

The FLREA allows fees for use of amenities and services at developed sites, but prohibits them solely for parking or for passing through National Forests without using any facilities. This case, Fragosa et al v. US Forest Service, hinged on whether the Forest Service can require an Adventure Pass anywhere amenities are present, even if a visitor does not use them and only parks there while traveling through undeveloped areas.

In his ruling, Judge Hatter said decisively that they can not.

In an earlier case, Adams v. U.S. Forest Service, the 9th Circuit Court of Appeals ruled in 2012 that the Forest Service was similarly in violation of the FLREA when it charged visitors to Mt Lemmon, near Tucson, a fee to park anywhere along a 28-mile roadway that provides access to numerous backcountry trails. The Adams ruling is binding in the nine western states that comprise the 9th Circuit, including California, but the Forest Service there continued to require an Adventure Pass for parking, and to ticket unoccupied cars at trailheads.

In the current case, four southern California hikers sued in October 2012 to require the Forest Service to follow the Adams ruling and to cease charging for parking throughout the Adventure Pass area. The Adventure Pass is the Forest Service’s largest fee program, selling more than 300,000 passes per year. After almost two decades it remains broadly unpopular, with more than 40,000 warnings and tickets for non-payment issued annually.

RULING IN FRAGOSA et al vs US FOREST SERVICE
Judge Hatter’s ruling is posted HERE. All of the legal filings, as well as media stories about the lawsuit, are posted HERE.

11 Comments

  1. Agreed with Sharon. The law (as adjudicated in several cases) allows the FS to go into the pay-toilet business if that’s what they want. But that is lousy policy. Whether it’s policy supported by Congress remains to be seen. Will they enact the “Pay Toilets On Public Lands Act Of 2014”? Stand by.

  2. To me this is good news. Maybe the USFS will wise up and see the “handwriting” in the laws. A few years ago I went to the Sinks trailhead on the Shoshone NF just west of Lander. A nice parking area and NO fee. I did not need to use the restroom. I don’t think I would have paid a fee if it was required. As a former Ranger, I know there is a cost to maintaining a trailhead but that is somewhat expected of the USFS. The other option is not to have one and let people park wherever they want to. The whole fee system needs to be reexamined. Some of the parking fees are more than campground fees if not charged by a special use permittee. Congress needs to be aware that funds are required for recreation use just as they are provided for grazing use. By the way, recreation fees keep going up but grazing fees remain where they were 30-40 years ago. I see a lot of ranchers with pretty nice PUs!

  3. I’m a bit concerned that instead of this decision leading to the development of “good policy”, it will lead agency toward the path of least legal resistance. Combined with the recent BARK v. U.S. Forest Service decision, it may provide incentives to consider the use of concessionaires in areas that can be difficult to manage from a REA perspective.

    • MD.. I agree that this is a real policy void. If I were Queen, I would get a FACA committee together to make some recommendations about fees, concessionaires and desirable legislation and approaches.
      Perhaps first fund a study of how other federal and state agencies fund recreation.

      One thing I noticed in my SAF volunteer policy work is that there is a DC link of folks who form kind of a center in forestry issues; not so much in recreation. They seem to be more interested in fighting with each other about whose recreation is allowed, than making sure there is a joint recreation pie.

      IMHO, the FS could help by establishing a FACA committee where people are M/L forced to work together.
      Or in terms of good government, having a joint BLM/FS recreation FACA committee.

      • Ouch, good shot Sharon. Sally Jewell is a classic case of one form of recreation trying to coopt the other. Maybe coopt isn’t the word, crush is better.
        The lowest blow I am aware of was the theft of statewide Montana gas tax money from motorized recreation trails to a local hike and bike program that was utterly incapable of raising the funding it wanted on the program’s intrinsic merit. The largest gas tax grant ever — cleaned out the coffers for hiking and bicycling.
        I never liked the fees program. I was much more comfortable in the old world where the Forest Service was fat and happy and there was lots of logging, lots of money for recreation maintenance and construction, lots of places to play AND work.
        Even the holy feet clad by sustainable sandals have an impact on Momma Gaia, yet because these are worshipful feet they are blessed. I guess I’m just upset by the cluelessness of those demanding free stuff from the Forest Service, not realizing that there’s no such thing as truly free stuff. Volunteering sounds dandy, but doesn’t really work that well because rounding up the volunteers itself is a pain in the patootie.
        I’m a member of a gun club here and it’s all “volunteer” — which means the slaves do all the work for nothing — except the right to have a screaming fit when a slacker member does something really stupid that makes extra work for the volunteers.

  4. I am not sure how it should get funded, but how about local salvage timber sale programs where to funds go to help pay for permanent maintenance crews at our local ranger stations,
    (and maybe even a timber sale administrator).
    I mean tourism was suppose to be our new economy, so we seems to make sense to make it so people can get to the forest and enjoy it. Get those roads and campgrounds open and keep them open year round where possible.

  5. Note: Courts don’t “set policy.” They apply the law set by Congress (or by the agency itself in the case of CFRs).

    When courts issue a ruling against the government, they are merely SETTING ASIDE government action found to be arbitrary and capricious, abuse of discretion, or not in accordance with law.

    The agency is still free to set policy that is WITHIN their authority and NOT arbitrary and capricious, abuse of discretion, or not in accordance with law.

    • Technically, you are correct in that courts don’t make policy. However, in reality, court rulings are often the drivers of policy, or in the absence of having a specific policy, become de facto “rules” for management.

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