In a case that has chewed up untold tax dollars and time, the U.S. Forest Service is still fighting to keep opponents of its fee program out of court.
The agency's challenge grew even bigger last year, when four people filed a class-action lawsuit against the Coronado National Forest, after they'd been fined for refusing to pay up. (See "Fee Fight Fattens," Currents, May 15, 2008.) Calling for an injunction against entrance fees on Mount Lemmon, the plaintiffs argue that Coronado's collection regimen has gone far beyond what's allowed under the Federal Lands Recreation Enhancement Act, or FLREA. That law specifically prohibits fees to use undeveloped camping areas or park alongside roads—fees routinely charged by Coronado managers.
Through various legal maneuvers, government attorneys have done their best to shield this issue from a direct court ruling. Consider Chris Wallace, a legal secretary who was twice fined in 2005 for failing to pay fees for hiking in undeveloped areas. Wallace successfully fought the citations in court, but the government appealed and won; Wallace then appealed that decision.
On the eve of her trial, the Forest Service dropped the most contentious charge, concerning a ticket left on her car while it was parked near an undeveloped area. Not coincidentally, it was also the charge most ripe for appeal.
But the true roots of this fight date all the way back to 1996, when the Forest Service began charging for the use of campgrounds, roads and other facilities under what was called the Recreation Fee Demonstration Program. The fee project has since raised the perennially underfunded agency hundreds of millions of dollars. But according to critics, the fees amount to double taxation while allowing Congress to continue neglecting the land-management agencies.
In Southern Arizona, the Coronado's Santa Catalina Ranger District annually brings in up to $800,000 in fees. But over time, the program has also sparked resentment and well-organized opposition. In 2004, that resistance helped prod Congress to replace the original fee demo with the less-ambitious FLREA. Under those revised guidelines, fees could no longer be levied for general access, or "solely for parking, undesignated parking or picnicking along roads or trail sides."
To circumvent those new restrictions, Coronado officials followed the example of other forests by designating the Santa Catalina Mountains as a "High Impact Recreation Area," or HIRA. In turn, they began attaching fees to nearly every activity within the forest along Catalina Highway.
But here's the catch: The HIRA concept appears nowhere in law. And that's likely why agency officials are working overtime to avoid having it tested in court.
And so on Dec. 7, the U.S. Justice Department flew federal attorney Kate Liberatore all the way from Washington, D.C., to urge U.S. District Judge Raner Collins to dismiss the class-action lawsuit. Flanked by a handful of uniformed Forest Service officials in a downtown Tucson courtroom, Liberatore argued for what is known as "Chevron deference." Named for a Supreme Court case involving oil giant Chevron U.S.A. and the Natural Resources Defense Council, it says that when laws are ambiguous, the courts must show deference to agency interpretations. Liberatore also questioned the plaintiffs' right to sue the federal government in this case.
Justice Department spokesman Andrew Ames says his agency can't comment, because the case is ongoing.
Mary Ellen Barilotti, the pro bono attorney representing the plaintiffs, calls Liberatore's reasoning off base. "The government is saying that, because we are asking for the return of (the plaintiff's) money, that defeats our ability to sue the government," Barilotti says. "I don't think they're right on that. We're not asking for damages. We're just asking for restitution."
Liberatore is also arguing that two of the plaintiffs—Daniel Patterson and Chris Wallace—have already been convicted for failing to pay their fines, and have thus had their day in court.
"But after the Forest Service got a favorable decision with Wallace, they dismissed the appealable issue before her trial," says Barilotti. "We're saying that she couldn't get a final decision through an appellate process because the government basically dismissed it, and we couldn't go forward."
In Patterson's case, Magistrate Judge Charles Pyle convicted him even though Patterson was far from any improved areas on Mount Lemmon when he was fined. Patterson, who represents Legislative District 29 in the state Legislature, says he hoped the hard line on fees might soften under the Obama administration. But in court, "It was disappointing, because I could have sworn that I was listening to someone from the Bush Department of Justice up there. And I couldn't understand why there were five uniformed Forest Service employees sitting in a courtroom, rather than out trying to take care of a national forest."
Further north, in Colorado's Arapaho and Roosevelt national forests, the road to Mount Evans has a similar HIRA—and a similar suit brought by fee opponents. "We're in court big-time there," says Kitty Benzar, president of the Western Slope No-Fee Coalition, based in Durango, Colo.
Indeed, the Mount Evans case could eventually have a huge impact on Mount Lemmon's fee system. The road through that HIRA is state-owned, and the recreation area boasts even fewer amenities than our own. Those factors make the Mount Evans fees even more unjustified. But the lengths to which officials will go to protect their revenues is outlined in an internal Forest Service memo since entered into the court record.
"We are beginning to get some flack from the no-fee groups about the fact that we are still charging 'entry' fees despite the fact that the REA says we can't," writes Pamela DeVore, a recreation fee manager for the Rocky Mountain Region.
DeVore then urges caution because "the West (sic) Slope No Fee Coalition is looking at everything we are doing with a very fine tooth comb."
Her subsequent advice includes not necessarily being honest about when a fee is required, and when it's not—such as when folks are just driving through the Mount Evans HIRA without planning to stop. "Consequently your compliance officers and convenient pay station ... attendees need to be made aware of this and should be allowing folks to drive through with no fee," DeVore writes. "Don't advertise this capability, but if the visitor asks you, you have no choice but to let them through"
No choice indeed.
Back in Tucson, Judge Collins has taken the Mount Lemmon case under advisement. No date has been set for a ruling.
