Red Rock fees in legal limbo

2010-09-21T05:05:00Z Red Rock fees in legal limboCYNDY COLE Sun Staff Reporter Arizona Daily Sun
September 21, 2010 5:05 am  • 

A Sedona backpacker has won a legal victory in a case questioning whether hikers, horse riders and others must buy a pass to visit much of the unimproved 160,000-acre forest surrounding that city.

The case is important because it calls into question the legality of charging someone a fee to use a wilderness area or unimproved trailhead in more than 90 other Forest Service areas nationwide. It also opens the door for others to ask that some Red Rock pass citations be dismissed.

"We've got millions and millions of acres of public land that are going to be freed up by this decision" if it stands, said Kitty Benzar, president of the Western Slope No-Fee Coalition.

"If you're just on a forest road somewhere in the Coconino and Kaibab and you pull over and spend the night, they can't charge you for that," Benzar said.

A spokeswoman for the Red Rock Ranger District said the agency was weighing whether to appeal, and whether it would also reconsider where the passes are needed.

Retired geophysicist Jim Smith, of Sedona, went backpacking down the Dry Creek Trail in the Red Rock/Secret Mountain Wilderness last November without a Red Rock Pass.

The Coconino National Forest says the $5-per-day pass is required for hiking in about 160,000 acres of "high-impact recreation areas" near Sedona. The pass system raises $800,000 a year, which is used for things like trash removal, signs, restrooms and road maintenance.

Smith returned to his truck to find a $100 citation for hiking without a pass, and then spent the winter preparing legal briefs to fight it by looking up other cases on the matter.

The Forest Service offered to drop its case in the spring if Smith would pay the $100, he said.

He declined.

"It's sort of in the spirit of community service," Smith said. "I think that I'm right and it's going to be easier for someone else to file a motion to dismiss (a citation) if they have documents from another case already available."

U.S. Magistrate Judge Mark E. Aspey sided with Smith on Sept. 14, dismissing his citation.

In his written ruling, Aspey said that although the Forest Service could legally require passes and collect fees in areas with improvements -- like restrooms, picnic tables, parking spots or trash collection -- the agency couldn't require someone to have a pass just to visit an unimproved trailhead, or a wilderness.

That basically agrees with what the anti-fee group asserts.

Requiring a Red Rock Pass is not entirely illegal, wrote the judge, just in certain cases.

"However, dismissing this citation is not the death knell of the Red Rock Pass program," Aspey wrote. "The record before the court reveals numerous recreation sites and locations within the Red Rock (high impact recreation area) which qualify as 'areas' where charging a recreational amenity fee would not violate the other provisions" of the federal law governing where the Forest Service can charge fees."

This is called the Federal Lands Recreation Enhancement Act.

Smith says he considered the odds before fighting the citation.

"It's a vast area, 10 miles to the nearest trash service ... I just found it difficult to figure out how the judge could find me guilty," Smith said.

He vowed to pursue the case higher if the Forest Service appeals last week's ruling.

Cyndy Cole can be reached at 913-8607 or at ccole@azdailysun.com.

Copyright 2016 Arizona Daily Sun. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(10) Comments

  1. Flagstaffer
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    Flagstaffer - September 23, 2010 2:48 pm
    Since the fees were established, I've questioned the validity of them being applied to people who just park along the roadside to hike in the woods or fish. Unless it has changed, the pass really functions as a parking pass. It has to be displayed in a vehicle, not on your person. I wonder if a way to “beat the system” would be to be dropped off and picked up. If there is no permitless vehicle to ticket what would happen? Still, we shouldn't have to find loopholes just to visit our public lands.
  2. Warren
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    Warren - September 23, 2010 10:01 am
    The best place to send financial support is the Western Slope No-Fee Coalition, www.westernslopenofee.org
  3. rozzieB
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    rozzieB - September 21, 2010 8:33 pm
    I applaud your courage to go up against the "forest circus". We have the same problem on Mt. Evans in Colorado and continue to fight the unjust fees to access our public lands. Believe it or not the F.S. claims they don't have a senic overlook on the top of 14,260ft Mt. Evans where I can see all the way to Kansas! The FLREA law specifically prohibits charging for scenic overlooks!
  4. azredwolf
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    azredwolf - September 21, 2010 6:28 pm
    All I know is that this program is nothing but bull. With that money they raise they hire more employees that dont needed to be hired and nothing is put on the ground just more useless office people. Look how many employees are at the Red Rock District compared to a similiar district. Way too much and they get payed too much.
  5. Ziggy
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    Ziggy - September 21, 2010 10:16 am
    Absolutely right on. Jim Smith has done us all a big favor.
  6. lemmon
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    lemmon - September 21, 2010 9:54 am
    Thank you, Jim, for your courage in fighting the Forest Service.
  7. pygmylowe
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    pygmylowe - September 21, 2010 9:49 am
    Nice going Jim. keep up the fight.
  8. Laurel
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    Laurel - September 21, 2010 9:34 am
    Congress was incredibly clear on intent with the wording of this program, specifically stating that fees can NOT be charged for unimproved area access, particularly, they went through pains to list out what is considered 'improved'. Trash, improved parking, bathrooms, security, picnic tables. For the forest service to then decide to call HUGE areas of land as 'improved' if there is trash collection SOMEWHERE, a bathroom SOMEWHERE, etc, is so clearly abusive and manipulative. Thumbs up Jim!
  9. donksax
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    donksax - September 21, 2010 9:28 am
    SALUTE! Jim, thank you for doing what you did. I am from southern Illinois, the Shawnee National Forest, and we are constantly fighting with the U.S. Forest Service over similar issues. YOU have set a precedent for all recreational users of the national forests. I would like to share a quote with you.

    "The world is a dangerous place, not because of those who do wrong, but because of those who look on and do nothing."

    Thanks again Jim Smith!!!!!
  10. WCorvi
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    WCorvi - September 21, 2010 5:42 am
    Where can we send financial support to Jim Smith? It is hard to believe the Forest Disservice can not even understand their own guiding laws.
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