The ever-escalating recreation fee program administered by the U.S. Forest Service (FS) is mired in controversy, and now, one of the most controversial fee programs of them all, the toll booth on the road to 14,126-foot Mount Evans, has become a flash point.
The highway, the highest-elevation paved road in the United States, passes through the outstanding scenery of the Arapaho-Roosevelt National Forest in Colorado, but it isn’t a FS road. The road, State Highway 5, is owned by the State of Colorado and built and maintained by Colorado taxpayers.
In the mid-1990s, using the now-defunct Fee Demo program as its authority, the FS signed a Memorandum of Understanding (MOU) with the Colorado Department of Transportation (CDOT) and has been charging fees to everybody who drove, cycled or walked past the toll booth built in the middle of State Highway 5. That MOU expired “sometime in 2004,” according to Lori Denton of the Clear Creek Ranger District, which includes Mount Evans, and the FS is currently negotiating with CDOT to “update it.” The FS has continued to charge fees on Mount Evans for at least two years after the original MOU expired.
In December 2004, Congress attached the Federal Lands Recreation Enhancement Act (FLREA) to a must-pass spending bill and made in the law of the land without even voting on it. FLREA replaced the Fee Demo program, but placing some restrictions on where and when the FS can charge fees. Specifically, the FS can’t charge for driving through national forests, only for using permanent facilities such as restrooms, campgrounds and picnic areas, which the FS has started calling “amenities.”
Here’s the rub. FLREA does not allow the FS to charge people to simply drive through a national forest, even on a FS road, let alone a state highway. You could say that the FS routinely ignores this restriction and charges for access in many places, including Mount Evans, but in reality, the agency simply makes no effort to tell people they have the option of driving through without paying.
As I write this, the Mount Evans road is still buried in snow and closed, but weather permitting, it opens on May 25, the Friday before Memorial Day. For many years, Mount Evans has been one of the most popular drives in Colorado. According to Denton, about 130,000 people go through the toll booth each year and pay about $300,000 in fees annually.
But it might be different this year. Or not.
When the FS asked CDOT for a new MOU, the state agency had the state attorney general review the legal situation. The AG gave approval for a new MOU as long as it required the FS to put up a sign saying that people “not using the amenities” did not have to pay the fee. In other words, as dictated by FLREA and state law, if somebody didn’t stop to use the visitor centers, picnic areas, or restrooms, they did not have to pay.
Stacey Stegman, speaking for the CDOT, told NewWest.net that was the agency’s understanding. “We didn’t realize they were charging everybody.”
She said the new MOU has been drafted but not signed because “we disagree on the sign. We found out they (FS) were charging everybody. State law prohibits charging on existing state highways. This fee is supposed to be for the amenities, not for driving on the road.”
Because of these legal requirements, Stegman explained, the Colorado AG wanted a clause in the MOU requiring the FS post a sign stating that people not using the amenities didn’t have to pay. “They (FS) refuse to put up the sign, so it looks like this might be elevated.”
Which means going up the food chain in both state and federal bureaucracies.
Denton could not confirm whether the FS would sign the MOU or put up the sign, saying that decision was above her pay grade, nor would she say if the FS would continue the status quo without an MOU.
She did say, though, that “by law, we do not have to post that sign. The MOU is a non-binding contract, like a handshake. It’s only to develop the framework of a partnership.”
I also talked to acting district ranger Donna Mickley, and she also could not confirm whether anything would change this year because of the breakdown in negotiations with the state of Colorado, but she did express concern that such a sign could prompt a lot of people not to pay.
Knowing all this, the primary opponent to the FS fee program, the Western States No Fee Coalition went to the Colorado Highway Commission meeting last December to oppose the new MOU. “But the blew us off,” said Kitty Benzar of the no-fee group. “I flew all the way to Denver and was only allowed to speak for three minutes. The ranger (Daniel Lovato, district ranger of the Clear Creek District) stood up right after me and said they never charged people for passing through the national forest. That was just a lie. The signage clearly says everybody has to pay. The Mt. Evans thing is a clear violation of the law.”
Note the photo of the sign at the entrance station accompanying this article indicating “a pass is required for travel beyond this point.”
Nonetheless, Benzar said, the highway commissioners indicated at the meeting that they would sign a new MOU.
“Not one single site on Mount Evans is compliant with FLREA,” Benzar insists. “The facilities have to have permanent structures to comply like permanent toilets (as opposed to porta-potties the FS uses on Mount Evans), picnic tables, permanent trash receptacles, developed parking, etc. They can only charge a fee for compliant sites.”
Benzar also questioned why the State of Colorado would allow this in the first place. “They don’t get a share of the revenue, so why would the state cede this public right-of-way to the FS for nothing?”
That seemed like a good question, so I asked Stegman. “I think the commission thought the FS needed the money to maintain the facilities,” she speculated. “I wish I had a better answer.”
Stegman confirmed that the state does not get any of the fee revenue.
Benzar said some of the locals have gotten mighty hot about the fee and when they get mad enough the FS gives out what she calls a “pink pass,” which allows people to drive the road without paying, “but they didn’t tell anybody it was available. Only a few locals know about the pink pass.”
She also said the FS would radio ahead and have rangers follow people with pink passes and threaten to ticket them if they stopped and got out of there car for any reason. However, Denton disagreed with Benzar on that point, saying people with the pink pass could stop at a pull off and take a picture without being ticketed “as long as they didn’t use any of the amenities.”
“If a person comes up and asks for a pass they will get one,” confirms Mickley, “but they will be monitored, They can stop anywhere except Summit Lake, Mount Goliath or the Mount Evans Summit. They can go for a hike and not get a ticket.”
Benzar said that the highway commission didn’t seem interested in hearing anything to the contrary of charging the fee. “The word of the FS was good enough.”
But now the gig is up. The CDOT knows the FS has been loose with the truth, and the two agencies have an impasse on the signage. The CDOT won’t sign the MOU until the FS posts a explaining the options people have, and although neither FS person I asked would confirm whether anything will change this year, it appears as if the FS will proceed with the status quo (i.e. continue to charge the fee without telling people about their options) and without a new MOU, which essentially ignores the state’s concerns.
“Right now, we’re in a holding pattern with the FS,” explains Toni Gatzen of CDOT. “Nothing has been decided on how to handle the situation. Hopefully, we can work something out, but we may not be able to do this before it opens.
“CDOT has options,” she notes. “We could put up the sign.”
Another possible outcome is–as it always is, it seems–litigation. “This is a pretty clear cut case,” Benzar claims. “Somebody will get mad enough to sue them. This is similar to the Mount Lemmon situation (in Arizona). It could become another test case.”
The FS initially lost the Mount Lemmon case, but a higher court set it aside, Benzar says fee opponents plan to continue to appeal the case.
“But I really don’t want to fight this out case-by-case in the courts,” she says. “Congress needs to change the law. Any senator who introduces a bill to repeal FLREA will get support from both sides of the aisle. It will pass through the senate easily, and any senator who spearheads an effort to get rid of FLREA would be hero. It’s a free hero badge for somebody.”
After she told me that but before this article was posted, I had a chance to talk to Senator Max Baucus (D-MT) about his views on recreation fee policy, and it looks she may have her wish granted. Baucus is seriously considering introducing a bill to repeal FLREA. Read about it here.
Stay tuned. It will be interesting to see how the two agencies resolve the stalemate.
Editor’s Note: The day after this article was posted, CDOt took charge of the situation and declared that the state agency would put up its own signs and state expense. Read about it here.