Recreation

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 In response to rising complaints, Congress repealed Fee Demo in 2004 and replaced it with the Federal Lands Recreation Enhancement Act (FLREA).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.

FEDERAL JUDGE ALLOWS PRIVATIZATION OF ALL RECREATION ON ALL NATIONAL FORESTS

Ruling says concessionaires are exempt from the requirements and restrictions in federal recreation fee law.

In a ruling handed down March 28, 2014, Judge Rudolph Contreras of the DC District Court wrote that Forest Service concessionaires are not subject to the restrictions on recreation fees that apply at agency-managed recreation sites.

The ruling essentially means that private companies operating under permit on National Forest land can require everyone to pay a fee for doing anything, anywhere within their permit area.

The ruling concludes a lawsuit filed by several individuals and a watchdog organization, challenging the Forest Service policy of allowing concessionaires to charge fees that the agency is not allowed to charge under the limitations in the Federal Lands Recreation Enhancement Act.

When FLREA was enacted in 2004, its authors included specific requirements and restrictions on recreation fees, in response to public concerns that the federal agencies cannot be trusted with fee authority. But they also included a clause allowing third parties to charge for goods or services “notwithstanding any other provision of law.” The Forest Service interpreted that to mean that concessionaires don’t have to abide by the same legal requirements as the agency must. That interpretation is what was challenged in the lawsuit, and what the court has now upheld.

Under Judge Contreras’s ruling:

The Forest Service can not charge a fee solely for parking.
But a concessionaire can!

The Forest Service can not charge a fee for passing through federal land without using facilities and services.
But a concessionaire can!

The Forest Service can not charge a fee for a scenic overlook.
But a concessionaire can!

The Forest Service can not charge a fee for general access.
But a concessionaire can!

The Forest Service can not charge a fee for camping at undeveloped sites with no amenities.
But a concessionaire can!

The Forest Service can not charge a fee for picnicking along a road or trailside.
But a concessionaire can!

The Forest Service has already turned over half of all its campgrounds, including more than 80% of the most highly-developed ones, to private operation – typically at much higher rates than agency-managed campgrounds. But this decision is not limited to campgrounds. It will allow the Forest Service to stop providing any recreation at all. They can turn it all over: picnic areas, trailheads, scenic roads and overlooks – everything – to private companies to operate for profit.

If you have a federal recreation pass like the Senior or America the Beautiful Pass, this is likely to make it worthless on National Forests, because concessionaires don’t have to honor those the same way the Forest Service does.

The Federal Lands Recreation Enhancement Act was recently extended into next year to allow Congress time to enact new legislation to replace it. That legislation must include provisions that apply consistent rules and restrictions on all public lands, regardless of whether they are agency managed or operated under permit by private entities.

Tell Congress you want concessionaires to play by the same rules as the federal agencies! Please take action now. Information on what to do is below.

Well, we’ve been talking about fuels reduction and travel management, here’s an op-ed by Bob Berwyn on the Eldora Ski Expansion. It just gives you a flavor of some of the other uses of the forest..as usual, I don’t agree with everything Bob says, but he always raises interesting points that are based on observing real things happening on the ground. And I certainly agree that appeals and litigation are not the best way to work things out.

Note: I worked in appeals and litigation on some ski area projects, in fact, I first “met” Harris Sherman when he was working as an attorney with the ski industry and he called about an appeal. I was around when our OGC folks developed guidelines to separate the proponent from the contractors working on the NEPA for projects. This was actually a result, not of a ski area expansion, but of a project I called “Reasonable Access for Unreasonable People.”

For those who might believe that the FS simply rubberstamps the ski industry’s proposals, I can only say “a series of signals are sent back and forth all the time between the FS and the ski area” and “Crested Butte.”

Eldora’s proposal, a relatively small project in a discrete geographic area, could become the model for a collaborative approach that focuses attention on the resources, and not the process.

There is precedent. In Breckenridge, town, county and ski industry officials hammered out a formal Memorandum of Understanding to address some of the concerns associated with the Peak 6 expansion. Similarly, the Forest Service participated in a rigorously facilitated negotiation over a proposed motorized recreation trail, eventually finding some common ground with nearby neighborhoods and towns that had bitterly opposed the plan early on.

Another example is a recently finalized deal between Denver Water and Trout Unlimited. Instead of lunging forward into an all-but-certain legal battle, the water bosses and fish lovers agreed to work together to closely monitor and mitigate the effects of new diversions from the Fraser River. If the plan works, conditions in the depleted stream will actually improve over the next few decades.

This is the key lesson for the sides lining up to do battle over the Eldora expansion plan: The Forest Service should invite environmental advocates, concerned neighbors, state and local officials and even federal environmental experts from the Environmental Protection Agency and the U.S. Army Corps of Engineers to develop an adaptive, restoration-based alternative that enables Eldora to meet growing demand, while at the same time resulting in long-term environmental improvements within the expansion area and on surrounding public and private lands.

Instead of settling for the least harmful alternative, the ski area, the Forest Service and local residents should aim high, striving for a plan with a long-term vision to actually improve the environment. If it sounds like a tall order, it is. You can see why some people prefer the lazy way, just letting the kabuki play out. But the end result of a front-loaded process would be infinitely preferable to years of legal squabbling that leave everyone frustrated.

Here’s what it would take: All parties would have to commit resources long-term to monitoring conditions on the ground, assessing impacts and developing new management actions to meet emerging issues. Boulder County already has considerable resources invested in protecting environmental assets, so it’s not hard to imagine the government partnering with the ski area to expand those efforts.

The ski area needs to — and probably does — consider the environmental sensibilities of its primary customer base and agree to a phased expansion approach. Making improvements in steps gives the monitoring program a chance to keep up and assess whether mitigation efforts are working. Approvals for subsequent expansion phases would be linked with meeting specific restoration goals.

The whole agreement needs to be wrapped up in a formal agreement like an Memorandum of Understanding and adopted as an enforceable provision in the Forest Service permit for the expansion. That makes everyone accountable and gives everyone a longterm stake in the outcome.

For its part, the Forest Service should also take seriously the Obama administration’s guidance on climate by developing a carbon-neutral version of the Eldora expansion plan that doesn’t result in any new greenhouse gas emissions. It may not be possible to immediately achieve a zero-emissions goal, but including a carbon-neutral version as a baseline would give the agency a chance to measure progress toward that goal.

Is there any way the ski area can harness some of those howling Eldora winds to generate electricity? Could Eldora help fund a long-term regional forest health program that would provide fuel for a biomass energy plant at the ski area?

Reasonable people working in a collaborative spirit with the goal of furthering the common good have achieved far more, so seeking a progressive solution to the vexing dilemma of ski area growth seems like a realistic path.

I’ve got to add that if more folks went to Eldora, from Denver, they would use less gas than going over 70 to the other resorts, plus fewer people on 70 mean everyone there uses less gas when it becomes a giant parking lot. Don’t know how this would or should enter the climate change considerations…

Steve Lipsher in an op-ed in the Denver Post..

And the fiercest debate today is over whether the new breed of winter bikes — which rely on bulbous, low-pressure tires to float over the snow — belong on the trails. The fear is they will gouge out ruts in soft snow, making the skiing treacherous.

On MTBR, a popular mountain-biking chat site, writers discussed whether fat bikes should be allowed on specifically groomed cross-country ski trails, which already prohibit hikers for the sake of keeping the track smooth.

“I tried to ride on a groomed trail once in Wyoming,” wrote one biker. “It was on public open space land, and the trail was probably 40 inches wide. I actually thought I was going to be lynched. I got on my bike in the parking lot and was surrounded by a bunch of XC skiers. They were actually shouting two inches from my face.”

“Skiers are a testy, testy bunch. Avoid them at all costs,” wrote another.

But even in sticking to multi-use trails on public lands that officially are open to all users, “fat bikers” are encountering hostility from unsuspecting snowshoers and skiers, similar to the complaints that hikers have expressed in the summer when bikers swarm past on their favorite treks.

Communities, public-lands agencies and user groups now are grappling with how to keep peace among the different interests. In Aspen, fat bikes for the first time this winter are being allowed on Pitkin County open space groomed by the Aspen Snowmass Nordic Council as a trial run. Two years ago, Idaho started hosting a “fat bike summit” that brings land managers and bikers together to discuss ways of alleviating conflicts. And the International Mountain Biking Association is imploring its members to be sure that fat bikes are permitted on the lands where they want to ride.

Because the number of fat bikes is doubling every year, doing nothing is no longer an option, and some regulation is needed. The problem is that land managers have been unable to keep up with the evolving uses and demands.

The U.S. Forest Service was slow to recognize the explosion of summertime mountain biking in the 1980s, and the ensuing user conflicts and braids of illegal, poorly designed user-created trails created a management nightmare. Similarly, ATVs have intruded into untrammeled places, forever altering their character.

Many of those routes have grown so popular that forest managers begrudgingly have been forced to include them in their updated trail networks.

Another issue is that bikers, as well as many other groups, always are looking to expand their territory, threatening to change the nature of … well, nature.

This time, it’s fat bikes. Next, powered bikes. Before that, mountain boards. Every new fad and craze competes for more space, resources, management on the trail, and each creates its own bitter divisions on who belongs.

Is there an answer?

I particularly noted this:

The U.S. Forest Service was slow to recognize the explosion of summertime mountain biking in the 1980s, and the ensuing user conflicts and braids of illegal, poorly designed user-created trails created a management nightmare. Similarly, ATVs have intruded into untrammeled places, forever altering their character.

It sounds like Lipsher thinks there wouldn’t have been user conflicts and illegal trails if the FS had… ??? developed a separate system? Had more folks out there giving citations??

Which is important, because as he says, there seems like there will always be conflicts.

Also, “forever” is a long time as in ATV’s “ATVs have intruded into untrammeled places, forever altering their character.” But I am growing accustomed to op-ed adjectives and adverbs which seem to respect no boundaries of definition or common usage ;).

Thanks to Kitty Benzar for finding this..in High Country News.
Here’s a link. Below is an excerpt.

I have news for Meyer: If he wants to operate a private park, he needs to buy some land on which to run his business. The last time I checked, U.S. Forest Service land was still the property of the federal government and thus the property of every citizen of this country. As long as he chooses to run his business on our land, he will be subject to the same political tides and bureaucratic nightmares as the rest of us — ridiculous though some of them may be.

Meyer argued on his blog that the shutdown of privately managed sites within national forests was “an unnecessary and vindictive hardship placed on recreators, since our sites don’t take one dime of government money.” That is hardly the case, since the companies operating concessions on public land keep money that would otherwise go to the Forest Service.

Meyer also claims that concessionaires like him “actually make lease payments to the government.” The fees paid by concessionaires for these special use permits, however, are largely mythical, as in practice, any savvy businessman knows legal ways to avoid paying them. Almost always, 100 percent of any fees are offset through write-offs for maintenance and repairs.

What’s more, when special use permits are issued to concessionaires, all bets are off when it comes to following the laws that are applied to sites run by the Forest Service. For starters, concessionaires are not required to accept interagency access passes. This is to ensure that they maintain their status as “business opportunities” rather than be mistaken for “providing more of a public service,” according to a Forest Service memo issued March 2007. If they were legally considered to be providing a public service, they would be forced to hire educated federal employees and pay them according to the federal pay scale rather than at minimum wage.

On Oct. 15, Meyer’s company, the trade group he steers and two other private concession operators filed a lawsuit against the Forest Service to protest the closings. In their complaint, Meyer and his cohorts asked to reopen their concessions. Two days later, the agency countered with a motion for dismissal as the reopening of the federal government rendered the complaint “moot.” So no court has intervened in this debate over privatizing some of our public lands.

Still, it’s probably not the best idea to sue your primary business partner, especially when that partner owns the land you operate your business on.

A couple of thoughts. First, I don’t like the idea of concessionaires from a fundamental perspective, as it removes agency employees from a direct relationship with the public. Like I’ve said before on this blog, it’s like the pastor contracting out personal visits to her flock. Second, some of them whom I’ve observed have an unprofessional attitude (that’s a separable problem, but still..). At the same time, I have seen FS budgets and people don’t usually volunteer to clean campgrounds.. bucks have to come from somewhere. Further, when there is no money and you tell people in NFMA planning that recreation must be sustainable, it seems like a problem. So while I acknowledge the problem, I have a number of difficulties with concessionaires being the answer.

Nevertheless, when the author says “That is hardly the case, since the companies operating concessions on public land keep money that would otherwise go to the Forest Service.” But to me the question is whether the FS would be making money with these sites. Could you also say “they spend money that would otherwise be spent by the Forest Service?”

I would like to hear more about this from those knowledgeable:

For starters, concessionaires are not required to accept interagency access passes. This is to ensure that they maintain their status as “business opportunities” rather than be mistaken for “providing more of a public service,” according to a Forest Service memo issued March 2007. If they were legally considered to be providing a public service, they would be forced to hire educated federal employees and pay them according to the federal pay scale rather than at minimum wage.

If ski areas remained open, I think the operators do have a legitimate question as to why they didn’t (as do timber operators). It seems, to this observer, it was a function of political clout. The lawsuit was an effort to put them on the “those with clout” list. I see that as pretty understandable.

This might be a real ad for all I know..

And on a lighter, or perhaps higher, note…Maybe Arnold would be better suited as a volunteer ski ranger..sniffing out smokers?

Here’s a link to the article (note the Denver Post just might be the most annoying online newspaper ever in terms of ads; I hope this doesn’t mean it’s on its last gasp):

For the people who like to use it, that is awesome, but it’s not legal to use it in public,” Henceroth said.

Amendment 64 does not allow marijuana consumption “conducted openly and publicly or in a manner that endangers others.”

“We’re one of those public places,” Henceroth said.

Arapahoe Basin is one of 22 Colorado ski areas that leases federal land from the U.S. Forest Service on five-year special use permits. Despite legalization in Colorado and Washington, marijuana remains illegal under federal law and is therefore illegal on those lands, whether or not it is consumed in public. The Forest Service said recent legalization should have no effect on marijuana tolerance at ski areas.

“Not every year would this be as emphatic or as big of a topic as it is now,” said Paul Cruz, regional winter sports coordinator for the Forest Service in Colorado.

Cruz sent a reminder of the federal law to recreation permit coordinators last week.

“There really is no change in forest special use permits because it was illegal before, and it’s still illegal,” said Chris Strebig, communications director for the Forest Service in Colorado.

At Wolf Creek Ski Area, officials decided last year not to pursue marijuana violations if users do not pose a safety risk and are discreet.

“Our patrol’s job is not to bird-dog everybody when they smell marijuana,” said Wolf Creek CEO Davey Pitcher.

The ski area, which opened ahead of schedule on Oct. 19, has had no issues related to marijuana since a federal officer caught an employee with a medical marijuana license smoking at the top of a ski line last winter, Pitcher said. Unless reckless skiing becomes an issue, Wolf Creek’s 400 seasonal staff will leave it to Forest Service officers to enforce the law. Citations for public consumption carry a minimum $250 fine and possible court summons, and a maximum fine of $5,000 and six months in jail.

“It’s their job, not ours, to enforce that,” Pitcher said. “They are up here quite often. They ski around. Sometimes they ski around undercover.”