Backcountry Shakedown

Stretching the law, national forests fill their cash drawers

Autumn shadows draped Mount Lemmon, their crisp breezes teasing the pines as she laced her boots. A hiker by habit, she was relishing this September stroll among Marshall Gulch's silent slopes.

Then a Forest Service officer approached, cracking the hush to scribble out a ticket. Yes, she had failed to pay a $5 fee. But a fee for what? No tent had been pitched in federal campgrounds, no burgers fried on government grills, no modest donations made to public potty parlors.

Still, it was the second time within weeks that she'd sought solitude here, only to be harassed by federal panhandlers. Dang it, she hadn't been hit up so much even in Quik Mart parking lots.

And that's when she started getting mad.

Meet Chris Wallace. This mild-mannered, church-going Tucson legal secretary is about to become the Forest Service's biggest nightmare. She refuses to pay fines she calls illegal. On March 21, she'll also be the first American to challenge the agency's latest revenue concoction in court. Losing might mean jail time. But a victory could spell the end of a multi-million-dollar scheme apparently forged from thin mountain air.

Wallace recalls her September encounter with that federal cop. "We had a discussion about why I didn't pay the fee, and he called me an elitist," she says. "I don't think I am an elitist, because an elitist is someone who thinks she is better than other people or above the law. I don't think I am above the law, but I do think people should not have to pay a fee to park their car and go hiking in the forest."

She was fined under a freshly minted statute called the Federal Lands Recreation Enhancement Act. Known as the "Rat Act" by detractors--short for Recreation Access Tax--the FLREA was recently sneaked into law as a permanent replacement for the oft-renewed, nationwide and widely despised Recreation Fee Demonstration Program.

A bit of history: The original "Fee Demo" was spearheaded in the mid-1990s by former Forest Service head Michael Dombeck, in cahoots with a group called the American Recreation Coalition. At the time, the ARC included such fun-loving heavies as the Walt Disney Co., National Ski Areas Association, Coleman Co. and Yamaha Motor Corp.

The goal, say critics, was to turn our public lands into privatized, profit-fetching commodities. Apparently, it worked: According to a 2003 U.S. General Accounting Office report, Fee Demo has earned more than $900 million since its 1996 inception. But the report also notes that "the Forest Service does not provide consistent information on where fee revenue is being spent."

For its part, the Santa Catalinas--including Sabino Canyon--bring in between $600,000 and $700,000 each year. Of that, we're told that about $100,000 goes to informative and interpretive services; another $300,000 goes for safety and water systems; and a full $75,000 goes to enforcing compliance by folks like Chris Wallace.

Not surprisingly, public outrage over the program has only grown over time. That became obvious in Congress, where attempts to renew Fee Demo stalled--until Rep. Ralph Regula pulled the kind of move so adored by disgraced lobbyist Jack Abramoff and cronies. Late in 2004, Regula, an Ohio Republican, succeeded in "earmarking" the FLREA by attaching it to huge spending bill. As a result, the law has never faced its own House vote, or any Senate vote at all.

Sleazy or not, squeezing the law into existence still required certain compromises, including new restrictions for federal land agencies. According to the FLREA, fees can no longer be charged "solely for parking, undesignated parking, or picnicking along roads or trailsides." They can't be levied "for general access" without special authorization, or 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."

Seems pretty cut-and-dried, right? Well, you'll notice the Mount Lemmon fee booth hasn't budged since the law slipped onto the books.

To plumb this paradox, we called Diane Carroll-Cobb, a recreation staff officer with the Coronado National Forest. She says the Coronado cop "was correct in issuing the citation" to Wallace. "He also offered her an opportunity to pay the fee, to avoid the fine." (Wallace disputes that. "He wasn't about to offer to let me pay the fee," she says. "He told me when he approached me that he was going to issue a violation notice to me.")

But why a fine in the first place? According to Carroll-Cobb, fees continue en masse "because the Santa Catalina Mountains are designated as a High-Impact Recreation Area."

Hmm. In scanning the FLREA, we find nary a mention of any such special fee areas. And you never will, says Kitty Benzar, co-founder of the Colorado-based Western Slope No-Fee Coalition. "The fact is that HIRAs are extrapolated by the agencies, and they are in agency policy. But they are not authorized by law."

The Forest Service "has become addicted to this money," Benzar says. "And because they didn't get the law they wanted, they're acting as if the law doesn't exist."

In other words, the Forest Service has just hatched a new, potentially illegal strategy for gouging the public. And that has drawn the attention of Congress, before whom Benzar testified in October. While HIRAs have popped up across the country, she singled out Mount Lemmon as a poster child for such abuse.

Coronado officials use "the HIRA to charge $5 per auto to those people using the road, except those stopping at any of the six vistas or those going to campgrounds or private property," she told the Senate Subcommittee on Public Lands and Forests. "The fee is required to park anywhere along the highway, except at designated vistas, and there are lots of places where people just pull off and park: climbers, hikers, and folks who just walk into the woods."

Which brings us back to Chris Wallace. "When the Forest Service charges essentially an entrance fee for access to a whole mountain range," Wallace says, "they are cutting off and restricting our use of our land--the public's land--and that is not right."

As winter fades from the Catalinas, a federal magistrate just may agree.