Speak Softly, Carry a Big Stick: Fighting Fees on Public Lands 

A fee-dodging retiree forces a national forest to rethink access charges

Retired geophysicist Jim Smith stands next to a Red Rock Pass dispenser at a trailhead just outside of Sedona, Ariz.

Daniel Kraker

Retired geophysicist Jim Smith stands next to a Red Rock Pass dispenser at a trailhead just outside of Sedona, Ariz.

Soft-spoken, bespectacled Jim Smith makes an unlikely activist. The former Mobil Oil geophysicist retired to Sedona, Ariz., about 10 years ago, drawn by the spectacular red-rock scenery. In November 2009, Smith drove five miles of rough road to the Vultee Arch trailhead and backpacked in for a night. When he returned, he found the Forest Service had ticketed him for failing to buy a Red Rock Pass.

Rather than simply mailing a check, Smith did some research. Then he challenged the citation in federal court.

Last September, he won. U.S. Magistrate Judge Mark Aspey ruled that the Coconino National Forest could not charge recreation fees at undeveloped trailheads or other sites that did not offer certain amenities, like toilets or picnic tables. The Coconino has since stopped charging fees at more remote trailheads. It's also held two public meetings and in June released two alternative fee scenarios. Coincidentally, the Forest Service announced on Feb. 25 that it would conduct a nationwide internal review of its recreation fee areas.

Smith says he challenged his ticket on behalf of those who "have a hard time affording fees." Kitty Benzar, president of the Western Slope No Fee Coalition, is more effusive. "Jim Smith," she says, "is a hero to a lot of people."

The Forest Service and Bureau of Land Management were first authorized to charge access fees through the 1996 Recreational Fee Demonstration Program. Local agencies needed money to reduce a huge maintenance backlog; at least 80 percent of the fees would be used on the land where they were collected. But many people resented the program, arguing that public lands should remain, well, public. Cities, counties and state legislatures, including those in Oregon and Idaho, passed resolutions condemning it and complaining about charges for access to undeveloped areas.

The Federal Lands Recreation Enhancement Act, passed in 2004, repealed the fee demo program and restricted fees to sites that provide amenities. But the Forest Service retained many of the same fee programs it had created under Fee Demo--even in areas lacking services. The agency came up with a new designation called High Impact Recreation Areas, which lump together primitive sites with nearby sites that do have amenities, creating chunks of land where fees could be collected. There are 95 HIRAs across the country, mostly in the West. They are often huge: Sedona's Red Rock fee area, for example, encompasses 160,000 acres.

Since FLREA also allows federal agencies to charge fees for "specialized recreation uses ... such as group activities" and "recreation events," the BLM took a different approach, requiring paid permits at roughly 20 primitive but sensitive sites throughout the West, like Utah's Cedar Mesa and Arizona's Paria Canyon. Benzar calls this the "black hole" in the law.

No-fee activists say the Smith decision has re-energized them. Matt Kenna, an attorney with the Western States Legal Foundation who represents plaintiffs challenging fees at Mount Lemmon outside Tucson and Mount Evans west of Denver, says it's helped in both cases. District court rulings aren't binding precedents, but Kenna calls it "a fresh, well-reasoned decision."

Still it's unclear how the decision will affect the Forest Service at large. The head of the agency, Tom Tidwell, says system-wide reviews were already being planned but acknowledges that Smith's case "was another indicator that we need to take a look" at the fee areas. The agency completed the reviews in late May but says it's too early to reveal what recommendations might result.

Given flat recreation budgets and skyrocketing visitation, some say access fees are likely here to stay. Nationwide the Forest Service collects more than $60 million annually in fees, about 20 percent of its total Recreation, Heritage and Wilderness budget. The money is funneled back into maintenance, safety, visitor education and more. In Sedona, Red Rock Pass revenue pays for managing the nation's largest national forest volunteer team, which does everything from pick up trash to help maintain trails. And the fee program is fairly lean: No more than 15 percent is used for administrative and other overhead costs.

The local program generated just more than $1 million in 2010. The Red Rock District received only about $400,000 in federal recreation funds that same year. The fees are critical for protecting a fragile ecosystem that hosts a million and a half visitors every year, says Coconino Recreation Staff Officer Jennifer Burns. If there aren't established trails, hikers create their own by tramping over sensitive soils, she says.

"The Red Rock Pass in this day and age is a necessity. I would hate to see it go away."

This story first appeared in High Country News in June 2011.

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