A federal appeals court decision in an Arizona case sharply restricts and may end the Adventure Pass program that imposes recreation fees for visitors to Angeles National Forest and other federal lands. The U.S. Forest Service, though, made no immediate move to change its fee system.
The Forest Service cannot charge a fee for visitors who simply park, hike or picnic in a forest without using such amenities as toilets, picnic tables, trash containers and security services, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit said in a unanimous opinion on Feb. 9. The Ninth Circuit includes California as well as Arizona and seven other western states, Oregon, Washington, Montana, Idaho, Nevada, Hawaii and Alaska.
In Arizona, a spokesman for the U.S. attorney’s office that represented the Forest Service in the case said that the appeals court’s mandate sending the case back to the federal district court in Arizona was not issued until April 3, and that as of mid-April, the lower court docket had no further hearing scheduled on the matter.
Tamara Wilton, Recreation Fee Program Manager for the Forest Service in California, said that her office was continuing the fee program and waiting for developments and legal guidance before making any changes. She called the situation “frustrating.”
Some forest users will have mixed feelings if the ruling ends the Adventure Pass. They have long objected to the fees, typically $5 a day or $30 annually, arguing that national forests are public lands financed through taxes, and the public should not have to pay to enter and use those lands.
But the fees help pay the cost of maintaining recreational facilities in the national forest, and replacing that money won’t be easy at a time of federal budget cutbacks and lean appropriations for the Forest Service.
Wilton said in 2010 fees totaled $1.237 million in Angeles National Forest in 2010, and $1.1 million in the San Bernardino National Forest. For all of California, the total that year was $7.1 million. She said much of the fee revenue has been used to maintain and improve facilities such as restrooms and trails, to finance visitor services, and for helping to fund partnerships with nonprofit organizations in forest projects.
The Arizona case was brought by four people who said the Forest Service exceeded its authority by charging them a fee to park in Coronado National Forest along the only paved highway to Mt. Lemmon, a heavily used recreation area an hour’s drive from Tucson.
A federal district court in Arizona granted the Forest Service motion to dismiss the case. But the forest visitors appealed and the appeals court in San Francisco agreed with them, saying that the “Forest Service’s fee structure contravenes the plain language of the REA,” referring to the Federal Lands Recreation Enhancement Act enacted in 2004.
The 2004 act replaced the 1996 Recreational Fee Demonstration Program that tested the idea of collecting visitor fees at national forests, even from those who just wanted to use undeveloped lands and not services and amenities. Specifically, the appeals court noted, the 2004 REA “made clear that the [Forest Service] will not be permitted to charge solely for parking, scenic pullouts, and other non-developed areas.”
To charge a “standard amenity recreation fee” in any area, the court said, the REA requires the recreation area to have all of these amenities: 1) designated developed parking; 2) a permanent toilet facility; 3) permanent trash receptacle; 4) interpretive sign, exhibit, or kiosk; 5) picnic tables; and 6) security services.
After the REA was enacted, the Forest Service drafted guidelines interpreting the new law as authorizing the Forest Service to impose a fee in a “High Impact Recreation Area,” (HIRA) defined as a clearly delineated area that supports or sustains concentrated recreation use directly associated with a natural or cultural feature, place, or activity. The Mt. Lemmon area in the Arizona case is one of these HIRAs.
There are about 10 of these HIRAs in Angeles National Forest, covering most of the places popular with hikers and other visitors. They include the Mt. Wilson area, trails near most of the Angeles Crest Highway, Big Tujunga Canyon, San Gabriel Canyon, Mt. Baldy, Wrightwood, Big Pines and Little Rock.
The appeals court brushed aside the idea that designating an area an HIRA allows the Forest Service to charge a fee for simply parking there, or for walking, hiking, riding horseback or boating there, without using the area’s amenities and services. “The statute is abundantly clear that a standard amenity recreation fee cannot, under any circumstances, be charged for those activities,” it said.
Writing the Ninth Circuit opinion was Judge Robert W. Gettleman, a federal district court judge in Illinois who was designated to participate in the case. Concurring were Chief Judge Alex Kozinski and Circuit Judge Carlos T. Bea. They remanded the case to the district court for action consistent with their ruling.
Local Forest Service officials declined to speculate on how the Forest Service will respond to the appeals court’s decision, saying that attorneys in Washington were studying it. Tamara Wilton in the regional office in Vallejo did say that the HIRAs have been under review for a year, and proposals for changes will be presented for comment by advisory committees and the public, probably this spring. She said the changes are expected to involve HIRA boundaries rather than fees. The Feb. 9 ruling and later decisions would alter those plans.
Given the clear language of the 2004 REA that no “standard amenity recreation fee” can be charged for persons who are simply “driving through, walking through, boating through, horseback riding through, or hiking through Federal recreational lands and waters without using the facilities and services,” it is hard to imagine how the Adventure Pass can be structured to work consistent with the law. It would have to be limited to visitors actually using the toilets, tables, trash containers and other named facilities, or developed campsites.
Loss of revenue from the Adventure Pass would add importance to the prospect of getting an estimated $2 million to $4 million annually for the region in National Park Service funds under a proposed National Recreation Area for Angeles National Forest and communities along the San Gabriel River to the south.
Don Bremner is chair of the Angeles Chapter’s Forest Committee.