Western Slope No

Western Slope No-Fee Coalition (WSNFC) Email Newsletter

December 2005

Contact: Kitty Benzar wsnfc@earthlink.net

Western Slope No-Fee Coalition

P.O. Box 403

Norwood, CO 81423

970-259-4616

http://www.WesternSlopeNoFee.org

Contents

1. Senate holds Public Lands Fee Hearing

2. Problems with agency implementation of the FLREA

3. The main areas of agency non-compliance with the FLREA

4. No-Fee Coalition launches new website: Non-compliant site report available for download

5. Please support us with a generous donation

6. Contest! We need a new T-Shirt Design!

7. Excerpts from the Western Slope No Fee Coalition’s testimony to the Senate subcommittee on Public Lands and Forests Hearing on October 26, 2005

8. Excerpts from Comments and Questions by Senators at the October 26, 2005, fee hearing

1. Senate holds Public Lands Fee Hearing

On Wednesday October 26th, the Senate subcommittee on Public Lands and Forests (Chairman, Senator Larry Craig, Idaho) held a public hearing on the implementation of the new fee law by the US Forest Service and the Bureau of Land Management (BLM).

Rep. Ralph Regula (R-Ohio) authored the Federal Lands Recreation Enhancement Act (FLREA), which passed as a rider attached to a must-pass spending bill last December. It superceded the Senate's unanimously-passed bill -- that would have made only National Park Service (NPS) fees permanent -- and allowed the fees for other public lands agencies to lapse.

No specific follow-up actions by the Senate are known yet, but we are in frequent contact with the Subcommittee and will keep you informed of developments. Thank you to all who emailed the subcommittee about the hearing!

2. Problems with agency implementation of the FLREA

The FLREA clearly intended fees to be restricted to developed sites. It lists six amenities that need to be in place before charging fees at day-use areas: permanent toilet, trash can, picnic table, interpretive sign, designated parking and security services. The entire text of the FLREA can be read at http://www.WesternSlopeNoFee.org

The Forest Service and BLM, however, both implemented such exaggerated interpretations of the FLREA that opponents began to catalog what they believe to be non-compliant fee sites. The Western Slope No Fee Coalition, using a Forest Service master list of some 4,500 fee sites nationwide, asked groups and individuals to survey Forest Service and BLM fee sites, and fill out a checklist for each site surveyed. An analysis of several hundred fee sites revealed a pattern of non-compliance, which the Western Slope No Fee Coalition began to collate into a report to deliver to Congress.

Early results of the survey were forwarded to some of our key congressional contacts, and word came in early autumn from Washington that an oversight hearing was about to be scheduled, and that we would be invited to testify. We then hurried to complete an interim 37-page report to Congress, including color photos of non-compliant fee site signage.

The members and staff of the Senate Forest and Public Lands Subcommittee are taking a keen interest in the evidence of non-compliance by the agencies that we provided in our report. A staff person from the subcommittee even traveled to Southern California in early October, to see for himself how the FLREA is being implemented on the Angeles and San Bernardino National Forests. WSNFC President Robert Funkhouser and Southern California fee opponent Bob Bartsch were his tour escorts.

3. The main areas of agency non-compliance with the FLREA

The survey report identifies three main categories of Forest Service and BLM non-compliance:

(1) High Impact Recreation Areas (HIRAs), which are not authorized in the law, but are being implemented under agency policy directives, extend fee authority far beyond the core site -- which contains the six amenities -- extending as far as tens of thousands of acres in some places. In Southern California, alone, there are 31 HIRAs encompassing 396,000 acres of National Forest land.

(2) Special Recreation Permits (SRPs), which used to be limited to outfitters and guides, are now being required by the Forest Service and BLM for individual uses of public lands such as access to wilderness, off-road vehicle (ORV) usage, mountain biking and horseback riding.

(3) Fees for parking at trailheads, which amount to a de facto charge for access to undeveloped backcountry, a type of charge that is expressly prohibited in the language of the FLREA.

To view the Western Slope No Fee Coalition's complete October 2005 Survey Report to Congress (and more) go to our NEW WEBSITE, http://www.WesternSlopeNoFee.org

4. No-Fee Coalition launches new website: Non-compliant site report available for download

The Western Slope No-Fee Coalition, thanks to the volunteer support of Webmaster Marv Stalcup of Sedona, Arizona, has launched our own website, at http://www.WesternSlopeNoFee.org

The site features a downloadable PDF copy of our Report on Non-Complaint Fee Sites. We encourage anyone interested in the issue of public lands access fees to visit the site, download the report, and check out the other information available there. This is a new site and is being built and improved all the time. If you have suggestions or comments, we welcome them at wsnfc@earthlink.net

5. Please support us with a generous donation

Our new website offers an easy and secure way to make a donation in support of our efforts against public lands fees. Your donations have made it possible for us to send fee opponents to Washington DC to meet with members of Congress and committee staffers, pay travel expenses for witnesses to testify at hearings, print out dozens of copies of our Survey Report and deliver it to every office on Capitol Hill, provide legal support to individuals ticketed for fee offenses, and many other expenses. We have NO PAID STAFF and much of the funding for our efforts has been borne by dedicated individuals. You can now donate by clicking on the Donations button on our website, http://www.WesternSlopeNoFee.org

6. Contest! We need a new T-Shirt Design!

For several years we have provided a t-shirt in return for a minimum donation to the WSNFC. The repeal of Fee Demo has made our previous T-shirt design obsolete, and we need a new one. The new design needs to illustrate the idea "Kill The R.A.T. " The R.A.T. or Recreation Access Tax, is our term for the Federal Lands Recreation Enhancement Act that replaced Fee Demo with a permanent fee program. The design needs to be a simple line drawing that can be reproduced in one color on a standard t-shirt. So come on, all you artists out there, let us see your ideas. Winning entry will receive t-shirts for the whole family from the first batch we print, and the enduring gratitude of public lands supporters everywhere. Send entries to wsnfc@earthlink.net with "T-Shirt Contest Entry" in the subject line.

7. Excerpts from the Western Slope No Fee Coalition’s testimony to the Senate subcommittee on Public Lands and Forests Hearing on October 26, 2005

Kitty Benzar, Co-Founder, Western Slope No-Fee Coalition

Complete testimony can be read at http://www.WesternSlopeNoFee.org

In a press release issued at the time the FLREA was passed, its sponsor, Rep. Ralph Regula, expressed his intent: "No fees may be charged for the following: solely for parking, picnicking, horseback riding through, general access, dispersed areas with low or no investments, for persons passing through an area, camping at undeveloped sites, overlooks, public roads or highways, private roads, hunting or fishing, and official business. Additionally, no entrance fees will be charged for any recreational activities on BLM, USFS, or BOR [Bureau of Reclamation] lands."

Our survey has found that non-compliant fee programs fall into three broad categories:

1) "High Impact Recreation Areas" (HIRAs)

The Forest Service and BLM are using a category called a HIRA that does not appear anywhere in the law. A HIRA is a group of individual sites with little or no federal investment that are collected together for the purpose of charging fees to access any of them. Under the guise of HIRAs, fees are being charged for driving scenic byways, state highways and county roads, for entrance to huge tracts of land, for access to dispersed backcountry, and for multiple sites with low or no federal investment. At Mt. Lemmon in Arizona, virtually the entire 256,000-acre Santa Catalina Ranger District has been declared a HIRA. Colorado State Highway 5 has become a toll road and entrance fees must be paid to the Forest Service in order to enjoy a scenic overlook, hike into a Wilderness Area, or simply drive on a state highway.

2) Special Recreation Permits (SRPs)

Both the Forest Service and BLM are requiring SRPs and charging fees for entry to designated Wilderness Areas that are completely primitive by definition. SRPs are being used to bypass the provisions in the FLREA against charging for access to backcountry and dispersed undeveloped camping, for use of roads and trails, and for passing through without use of facilities.

3) Trailhead Fees

Examples of trailhead-fee areas include the White Mountain National Forest in New Hampshire, where a "Parking Pass" is required at 44 trailheads and river access sites. These fees control access to most of the Forest's backcountry. In the Pacific Northwest, a pass is required at over 500 day-use sites, mostly trailheads, on twelve National Forests.

These documented excesses by the Forest Service and BLM cause special concern when viewed in the context of the severe criminal penalties for failure to pay FLREA fees. Although first offenses are capped at a $100 fine, they still create a criminal record, and subsequent offenses are subject to penalties up to $100,000 and/or 1 year in jail.

Compliance with the provisions of the FLREA was mandatory as of December 8, 2004. By now, the Forest Service and BLM should have dropped fees at thousands of Fee Demo sites. Instead, they continue to charge non-compliant fees nationwide. The BLM has not dropped a single one of their 97 fee programs, and in fact recently announced plans to add 38 new fee sites in six states.

In Colorado, the Forest Service is citing the FLREA as an excuse to reduce services while implementing more fees. In the Summit Daily News, White River National Forest Recreation Program Manager Rich Doak is quoted as saying, "In our development sites we've been told they need to pay for themselves, or we need to get rid of them." Decisions on whether or not to charge fees are being driven by the Recreational Site-Facility Master Planning process (RS-FMP) within the Forest Service. This policy calls for recreational areas to be "sustainable" (i.e. profitable) and to have a marketable "niche." Those that are not profitable (including unprofitable fee sites) will be closed to public use or in the case of a trail be allowed to grow back to their natural state. RS-FMP and Cost Recovery will certainly have a negative impact on local tourist economies as recreational opportunities disappear. They will definitely restrict public access to public land despite the fact that the agencies receive a vast majority of their funding from the taxpayer through Congressional appropriations. The implication is that most, if not all, recreational sites, areas, and uses must be profitable, through fees and permits, or they will close.

8. Excerpts from Comments and Questions by Senators at the October 26, 2005, fee hearing

The transcribed excerpts below have been selected to show the viewpoints of two Senators present through the entire hearing, Sen. Larry Craig (R-ID), chair of the Senate subcommittee on Public Lands and Forests, and Sen. Craig Thomas (R-WY), chair of the Senate subcommittee on National Parks. Senator Thomas was author of S.1107, a bill that passed the Senate unanimously in 2004 but was never taken up by the House. It would have made only Park Service fees permanent, and would have allowed other public lands fees to lapse. These Senators will be key to making the US Forest Service and BLM comply with the letter of the FLREA over the coming months. [Background: The FLREA allows Recreation Advisory Committees, statewide or smaller, each representing various recreational interests. The USFS and BLM want to give this job to existing (non-recreation) Resource Advisory Committees, with only one or two nationwide.]

Chairman Senator Larry Craig’s Opening Statement:

On March 2003, at a joint Forest Service and Department of Interior briefing on lessons learned from the Recreational Fee Demonstration Program, the Forest Service said they tested a wide variety of the fee programs to best learn what worked and what didn't work. "We did not always get it right, but we have listened, learned and adjusted." What didn't work? Charging access fees for undeveloped areas with no or few services. When we last visited (this) in April 2004, I said I want all to know I will not support a basic entrance fee to National Forests, BLM, USFWS, whether or not it's called an entrance fee or by any other name. We are not going to start managing National Forests, BLM lands and Wildlife Refuges like National Parks.

When I see you charging for entrance to a 205,000-acre area like Mirror Lake Scenic Byway of Utah, or 396,000 acres of lands in 31 HIRAs on the four Southern California forests, or 400,000 acres in Cedar Mesa Area BLM, Monticello, Utah, I have to suspect that implementation of the standard amenity recreation fee may have gotten off on the wrong foot. I am concerned with the agencies' interpretation of Section 803(h) Special Recreation Permit Fees. I see a list that said and I quote "Such as group activities, recreation events, motorized recreational vehicle use." But I hear the Forest Service thinks that this should include permits to enter wilderness areas and use rivers. This causes me concern. When it comes to Recreation Advisory Committees, I need to understand why the agencies feel compelled to attempt to find ways to implement this through subgroups of existing Resource Advisory Committees, or for multiple state areas. I'm troubled by this approach. Finally, I want the BLM to help us understand the legislative underpinnings of the BLM's drive to recover cost at its recreation fee sites and what the Forest Service position is on cost recovery at their sites.

Senator Craig Thomas’ Opening Statement:

My position was to do it for Parks and not for other public lands. That's not the way it turned out, so I guess still I'm hopeful that what we can do is come up with reasonable criteria for the kinds of areas in which fees can be charged. I assume they ought to be where there are resources for the guests.

Sen. Craig- I believe the FLREA prohibited the BLM and USFS from charging entrance fees or for charging people to walk, drive or ride through lands. Can you tell me how your department concluded that the FLREA permitted the creation of HIRAs and how it is they seem to be willing to ignore section 803(d, 1) that prohibits the department from charging for certain things?

Mark Rey (Undersecretary of State, Dept. of Agriculture, responding for the US Forest Service, answer abbreviated)- In the case of the HIRAs, the Resource Advisory Committees will review the fee structure of each of the HIRAs. Essentially, the HIRAs are areas where we have groups of sites that together contain all of the amenity values that justify the charge of the basic amenity fee.

Sen. Craig - When Congress authorized the FLREA, it included Special Recreation Permits, to deal with a limited number of activities on off-highway vehicle parks and outfitter/guides. Your guidelines seem to give authority to charge Special Recreation Permit fees for just about anything. In your mind, what are the limits on the Special Recreation Permit authority? Is it your intention to start charging people to enter into a wilderness area under the FLREA?

Mark Rey - Next step, charter Resource Advisory Committees to look at HIRAs, in particular and then move forward, with Resource Advisory Committee's assistance, in deciding where in the future we make any other fee sites.

Sen. Craig - The FLREA states that new sites could be added after going through a public comment process which amongst other things required the recommendation of new sites by a Recreation Advisory Committee, and provided for a 6-month public comment period following publication of proposed site additions in the Federal Register. Please explain how under those authorities, the new sites that were added actually got added.

Mark Rey - The only new sites that were added were campgrounds that were already on line or under construction, where fees would have been charged under the Land and Water Conservation Fund and we felt justified in keeping the fee programs there.

Sen. Craig - I am specifically interested in the example in California, where new intensity use areas were permitted and charged, that didn't exist before.

Mark Rey - In these areas what we've done is created a High Impact Recreation Area combining a number of areas where fees were previously charged, under either Land and Water Conservation Fund or under Recreation Fee Demo authority. We will be submitting those (HIRAs) to the Resource Advisory Committees once they're chartered, to make sure that they concur that that's a reasonable application of the statute.

Sen. Craig - I would argue, is that consistent with the law?

Mark Rey - I think the statute did provide us the authority to charge basic amenity fees in these kind of instances and if you look at the pictures, those pictures give you a pretty dramatic illustration of what the fees are used for and why they're necessary.

Sen. Craig - Is that where you used tape over certain lettering?

Mark Rey - That's temporary.

Sen. Craig - Sounds like a rush to revenue, to me.

Sen. Craig - The Forest Service found that the parking pass program at the Sawtooth National Recreation Area was non-compliant with the FLREA and dropped it from the program in June and for that, those who involve themselves at the SNRA are forever thankful. Why was this parking pass program dropped and not other very similar parking pass programs in other parts of the nation such as the White Mountains (NH) or the Northwest?

Mark Rey - When we made the transition from Fee Demo, the local units had the option of coming into compliance by adding the amenities if there's adequate demand for them or not, if it didn't make sense. Those were local manager options, guided by what they thought the local public needed and wanted.

Sen. Thomas - I think the Departments are working at putting this into effect. I hope that we all understand that it was defined to be pretty specific for specific areas and I must say, Mark, that I see pictures of all these cars on the road and there is nothing there for facilities. Maybe you plan to build some facilities, I don't know. Just because it's crowded doesn't necessarily indicate that you're doing anything for facilities. Public lands are different from Parks and I think we need to understand that. My gosh, there's millions of acres of public lands in Wyoming; people are going to enter and go on and there's no facility there. I think we need to be very careful about it. I hope we come up with pretty clear criteria, what kind of facilities really are appropriate for fees and hold it to that. This is not a matter of paying for public lands by fees, that's not what that's for. We ought not to be confused about that.

Sen. Craig - On June 9, Forest Service stated to have reviewed all of their fee sites and claimed to have dropped 480 sites that were not in compliance with the FLREA. What can you tell me about how this affected fee implementation in your area?

Kitty Benzar - We compared the 480 (subsequently revised down to 435) to the 4,500 Fee Demo sites in effect on the day of enactment. What we found was that more than half of the sites that were supposedly dropped did not meet the definition of a Fee Demo site that was being dropped because it did not meet the requirements of the new Act. There were a variety of categories.

Sen. Craig (in closing) I have cautioned very clearly over the years, the public ought to be careful of fees; it's a way of replenishing lost revenue. That's why we were very careful in trying to craft. Although I opposed the rec fee situation that is now before us, I was not successful. That is why I support full compliance under the (FLREA).

http://www.WesternSlopeNoFee.org