Monday, September 25, 2017
Breaking News
Home » Rockies » Oregon » Bend » Obama Retains Bush Legal Defense of Public Land Recreation Fees
"Change We Need." You remember it, right? Heard it at least a thousand times, correct? But based on recent events, Barack Obama's campaign slogan should've been "No Change Needed" because public land users have all been short-changed again by the Forest Service (FS) with full support of the new administration. Critics of the Federal Land Recreation Enhancement Act (FLREA) or Recreation Access Tax (RAT), as we call it, have been quick to blame it on the evil, pro-privatization, environmental unfriendly Bushies, so I guess it's a real shock to us to see the Obama administration making no change at all in the defense of the aggressive implementation of maligned law.

Obama Retains Bush Legal Defense of Public Land Recreation Fees

“Change We Need.” You remember it, right? Heard it at least a thousand times, correct?

But based on recent events, Barack Obama’s campaign slogan should’ve been “No Change Needed” because public land users have all been short-changed again by the Forest Service (FS) with full support of the new administration.

Critics of the Federal Land Recreation Enhancement Act (FLREA) or Recreation Access Tax (RAT), as we call it, have been quick to blame it on the evil, pro-privatization, environmental unfriendly Bushies, so I guess it’s a real shock to us to see the Obama administration making no change at all in the defense of the aggressive implementation of maligned law.

Case in point. After a five-year legal battle over a particularly abusive use of RAT on Mount Lemmon in Arizona, the power of the federal government legal machine has finally prevailed in exhausting the resources of a few small volunteer groups trying to preserve public access to public lands.

You can read the entire court decision here, but briefly, volunteer groups led by the Western Slope No-Fee Coalition (WSNFC), challenged the validity of the so-called Mount Lemmon HIRA, a FS invention of convenience to allow the agency to charge for birdwatching, climbing, fishing, hiking, hunting, and even parking or driving on state highways passing through national forest land we all own.

A HIRA is FS-speak for High Impact Recreation Area, but in practice, it should stand for Highly Insulting Revenge Action. That’s all it is, vindictiveness against last-minute amendments in FLREA that Congress approved to prevent the FS from charging a fee for entering public lands or for parking or any other use of our national forests where the public didn’t use “amenities,” which are defined in the law as physical or developed improvements like campgrounds, picnic areas, restrooms, and visitor centers. By creating HIRAs, which are not authorized or even mentioned anywhere the FLREA, the FS gets around all of those pesky restrictions by charging access to the HIRA itself, including parking along the highway, which was the basis of the Mount Lemmon suit. (Click here for earlier coverage of the lawsuit.)

“The judge gave the FS carte blanche to ignore the very specific prohibitions in the RAT on where fees can be charged as long as they first declare a High Impact Recreation Area,” Kitty Benzar, executive director of WSNFC, told NewWest.Net in an email. “Within a HIRA none of the prohibitions apply–sort of like a Black Hole where the normal laws of physics are suspended.”

Benzar’s more-pointed interpretation of the judge’s decision: “In other words, the law’s prohibition against a fee for parking where there are no amenities does not prohibit the Forest Service from charging a fee to park where there are no amenities.”

WSNFC has also challenged the FS “toll” to drive on a state highway up to Mount Evans in Colorado, perhaps the most inflammatory fee area of them all, but Benzar is not optimistic about the outcome. It’s simply so time-consuming and costly to stand up to the federal government, and the solicitor’s office delights in making it even more time-consuming and expensive with legal maneuvering and delays that, by design, eventually wear the volunteer spirit to the bone.

Worse, perhaps, the Obama administration has rubber-stamped yet-another Bush administration policy. Instead of giving us the “Change We Need” and calling off the legal dogs when he moved into The White House, Obama let his solicitors continue to pursue the legal defense of the unpopular policy and passed up multiple opportunities over the past 15 months give us a break, for a change, and show support for keeping public lands more accessible and affordable to low- and middle-income Americans.

FLREA allows the FS to charge a “Standard Amenity Recreation Fee,” and the agency has morphed this legalese into the HIRA concept. But the FS can only charge this fee if the recreation site included in the HIRA has all six of the following “amenities”–designated developed parking; a permanent toilet facility; a permanent trash receptacle; interpretive sign, exhibit, or kiosk; picnic tables; and security services.

To date, the FS has created 97 HIRAs, which include 981 recreation sites such as campgrounds and picnic areas. One, the Red Rocks HIRA on the Coconino National Forest in Arizona, is whooping 160,000 acres. Of those 981 recreation sites, 739 or 75 percent lack one or more of these six “amenities,” but that doesn’t stop the FS from ignoring the law.

Interestingly, the FS has gone easy on the Northern Region covering Idaho and Montana, home of two powerful, anti-RAT Senators, Max Baucus (D-MT) and Mike Crapo (R-ID). Each state has only one small HIRA–Lake Como on Montana’s Bitterroot National Forest and Payette River on Idaho’s Boise National Forest. Don’t bet on it staying that way too much longer, though. As soon as the politics cools down, the Northern Region will have more and larger HIRAs.

So, here’s the punch line: If Senators Baucus and Crapo need any more incentive to prioritize S. 868, their bill to repeal FLREA, the Mount Lemmon decision should suffice.

“The decision is very bad,” Benzar said, “but I hope it is so bad it’s good in the sense that Senators Baucus and Crapo must do something legislatively if they want Americans to be able to access National Forests in undeveloped areas without paying a fee. Clearly we cannot rely on the agency following the law voluntarily, and now we cannot look to the courts for relief.”

Footnote: for extensive NewWest.Net coverage of the recreation fee issue, click here.

About Bill Schneider

Check Also

One Big Sky Center

Hammes Company Joins One Big Sky Center Venture in Billings

Billings, Montana is moving ahead with discussions on the One Big Sky Center proposal, which ...


  1. So, if free entry into public lands is a right like health care is a right, who pays for the right? And shouldn’t it be a right whether you enter public lands on foot, by bicycle, ATV, SUV or motor home? And why should seniors have more of a right to enter public land than other age groups?

  2. For the life of me, I cannot figure out why anyone thinks that certain folks are entitled to have exclusive access to public lands and then demand that those folks locked out pay their way.

  3. Wow, Obama does understand incentives. Think about the last time you wash a rental car–never. The rental car company, however, is quick to wash, wax, polish, and maintain the car. If natural resources are unowned (which includes owned by all with funding coming from the national treasury) managers/users have less incentive to protect them. User fees help change the incentive structure. Fees paid by the actual users have allowed managers to respond to the needs of visitors and protect the natural resources in ways that were impossible when all funding was coming from congressional appropriations. As an avid outdoors-women I have seen positive results from use fees with my own eyes and am happy to pay to climb or mountain bike in the forest.

  4. Bad analogy there. The rental car company actually owns the car.

  5. Laura, you are right that incentives are powerful things, but you misunderstand where the incentives lie in this case. When public lands were owned by all, we all felt responsible to care for them, at least that’s how I was brought up. But when you have to buy a $5 “admission” ticket to go for a walk in the woods it now becomes someone else’s responsibility to care for them.
    The fee program has effectively transferred ownership from the people to the land management agencies. They can now charge us to walk on ground that used to be ours, and they get to keep all the money. That’s where the true incentive lies:

    They. Get. To. Keep. All. The. Money.

    How’s that for an incentive?

    Appropriated funding at least gave us some nominal control through our elected officials. (I know I know it wasn’t a pretty process, but the structure was there.) Now every District Ranger can raise his own budget by putting a price tag on the scenery, and accountability for it is nonexistent. As far as Congress or the public are concerned, from the Ranger’s point of view we can all go pound sand. He has his drop dead money.

  6. This is not a conservative vs. liberal issue, nor wilderness vs. multiple-use issue. It is an issue of government accountability. This year the Forest Service is receiving an 8.9% increase in appropriated (taxpayer) funding. This is on top of billions of dollars received in “stimulus funds.” As confirmed by multiple General Accounting Office reports, this agency has an abysmal record of any sort of accountability, financial or otherwise. Giving the Forest Service this sort of fee authority is like giving an irresponsible teenager full access to the family’s credit card. This policy began with Al Gore (Rec Fee Demo) progressed through the Republicans with George Bush and now continues with the Obama administration. Responsible, accountable government is the real question here. It seems increasing evident that neither political party is interested finding an answer.

  7. People do not value what they don’t have an investment of either time or money in. We need to make it pay as well as possible, if our indebtedness keeps going up & up, China will foreclose. OUr country is in trouble, we cannot expect others to keep subsidizing recreation.

  8. Benzar and others need to realize that a movement based on cynicism and being a freeloader is ultimately unsustainable.

  9. (Good heavens. I’m going to break a personal rule, here, and argue on the internet.)

    Let’s be clear: are President Obama’s environmental policies everything that left-ist environmentalists had “hoped” for? No. Does that mean he hates national forests? No. The suggestion that Mr. Obama’s environmental policies have so far been the same as Mr. Bushs’ is hyperbolic, at best. Ken Salazar is no Edward Abbey, true–but also no Gale Norton.

    To read Mr. Schneider’s repeated polemics against the Federal Land Recreation Enhancement Act (FLREA), you’d think the act a bald-faced and pernicious attack on Americans’ access to public lands.

    It’s not. Rather, the FLREA is simply a manifestation of the free-market/capitalist belief that user fees best allocate scarce resources between competing users. Nothing more, nothing less.

    The grounds for reasonable arguement, here, is over the term “best”. A free market environmentalist believes “best” to mean “most efficient”. Mr. Schneider, it seems, believes “best allocation” to mean “most egalitarian”. Disagree with the free market allocation scheme, then, naturally follows.

    The economics of the matter is clear: assuming 1) sufficient crowding to reduce ALL USERS’ enjoyment of a given recreation area / public land (owing to dislike of forests teeming with mall-like masses, or simply because crowds imply more impact, litter, overflowing parking lots, etc.); and 2) the availability of good (less crowded) substitutes (there’s plenty of public lands around Mount Lemmon area), THEN charging a user fee will actually increase the total amount of utility (roughly: enjoyment) users get from a fee-affected area.

    The short explanation is: user fees mean fewer users, but more enjoyment for those fewer users. Let me try to explain:

    Let’s use Mount Lemmon (or, specifically the Sky Island National Scenic Byway) as an example. Given Mount Lemmon’s relative proximity to Tucson, let’s say that, on a given weekend, recreators will flock to Mount Lemmon up until the point that Mount Lemmon is so crowded that recreators are indifferent between going to Mount Lemmon and, let’s say, nearby Catalina State Park (which, we assume, can accomodate many users and is not threatened by overcrowding).

    Now, suppose the introduction of a High Impact Recreation Area (HIRA) user fee of, say, $20 for Mount Lemmon. Those who were previously indifferent between a crowded Mount Lemmon and an uncrowded Catalina State Park now go to Catalina. Those who get $20 worth of enjoyment from a less-crowded Mount Lemmon will now be indifferent between Mount Lemmon and Catalina.

    Here’s the difference, though. Those who get greater than $20 worth of enjoyment from a less crowded Mount Lemmon than Catalina State Park are now much better off. If one was previously indifferent between a free but crowded Mount Lemmon and Catalina State Park, but gets $30 worth of enjoyment from hiking in a less crowded Mount Lemmon, this person gets $10 worth of pleasure from the Mount Lemmon area that, if not for the fee, nobody would get in the absence of the fee.

    In short, the user fee allocates a scare recreation area from those who value it less to those who value it more. When crowded, nobody gets much enjoyment (relative to other alternatives) from the area. When less crowded, at least a few people get considerable enjoyment.

    (I’m sorry if I’ve explained this poorly–the concept certainly deserves better explanation.)

    My point is simply this: there’s nothing pernicious about the FLREA. The lawmakers who drafted and voted for the FLREA, I’ll wager, love our public lands and resources as much as any who argue against recreational area taxes. They just happen to hold the view that user fees are the best (i.e. “most efficient”) way to preserve and ensure access to our national treasures.

    For my part, I love our national forests and parks. The only reason I’ve felt outrage about the increased fees for, say, privitized campgrounds in our national parks, is that I grew up paying $6, and now I have to pay $18. But if I’d grown up with the expectation that staying in an improved campground with such amenities as a fire-pit, clean, painted table, toilet, water, etc. cost $18, I’d have no quibbles. Better a campground priced at marginal cost than no campground at all.

    (Let the flaming begin…)

  10. First of all, my utmost appreciation to Bill Schneider for keeping this issue front and center and to those of you who have commented I am grateful for your dialogue in the process.

    It is my firm belief this is all about how our public servants choose to collect and spend our money. Our public land needs to be taken care of and the Forest Service spends money on a variety of priorities.
    More and more is spent fighting forest fires and less and less is spent taking care of the forest. As an example the forest in my neighborhood has seen scant trail maintenance funds since the 70’s. I am in a volunteer organization and we maintain and take care of the trails. The point is, the Forest Service could take care of the woods, the trails, the trees, and run the campgrounds at no charge if their budget and allocation was done with a different set of priorities.
    I just don’t have an answer for who our how this might happen. Hopefully you might have some thoughts.

  11. Binky Griptight

    Mark Egge says, “The short explanation is: user fees mean fewer users, but more enjoyment for those fewer users.”

    Perhaps one way of saying that is: user fees mean those with more income (and thus lower marginal cost) get more enjoyment. Those who can’t afford it feel disenfranchised from their national heritage. Long live the nobles and the king – may they reign forever!

  12. User fees for public land recreation are cool because: 1. Fees are fairer than broad based taxes. Users pay. Non users don’t pay. 2. You don’t need a massive bureaucracy to allocate limited maintenance and improvement resources. More used campgrounds or trails aromatically get more resources. 3. Users fees can be means tested so that very low income people get a discount or free pass.

  13. If everyone is allowed to use the public lands and pays a fee, the fees will be lower and and it will be accessible to more folks. Those who demand all sorts of restrictions on who can enjoy and use the land, and the certain ways they have to conform to will of course pay more for that exclusivity. It is selfish and wrong for certain folks to insist that they have exclusive rights to an area and someone else be required to pay for them.

  14. Mickey, you accidentally nailed it on the head with your cute misspelling:
    “More used campgrounds or trails aromatically get more resources.”

    The whole endeavor does have a certain aroma, doesn’t it?

    The concept of “user pays” has its place in our culture, and its place is in the market. Public lands were not set aside for anyone’s profit, they are supposed to be a place where we are all equally welcome, rich and poor alike. If we’re going to throw that concept out, just sell them to Disney and be done with it. Quit pretending they are public lands. Under “user pays” they are the property of the Forest Service and the other agencies, not the people.

  15. Ranchers, miners, ORV users and loggers could make the same argument that recreationists make for free use of public lands paid for by the taxpayer. Public toilets have to be cleaned more frequently than private toilets and someone has to be paid a living wage to do it.

  16. Ranchers, miners, and loggers take away something of commercial value from the land and should reimburse the public for that extraction.

    ORV users to me are in the same category as hikers and equestrians when they are using multi-purpose roads and trails, i.e. no fee for general access.

    When they are using a specialized facility that is designed for and open to only them, then yes, there should be a fee for that. That applies to specialized facilities for other users too, like groomed x-c ski trails, groomed snowmobile trails, and camping in developed campgrounds.

    It’s the fees for general access to dispersed undeveloped country just to go for a hike or ride in the woods that is at issue here.

  17. I don’t know of any national forest that can’t be accessed on foot off trail carrying a knapsack or a pack. As long as you don’t leave a tell tail car parked somewhere, regardless of the laws, you don’t have to run into anyone if you don’t choose to and you can stay as long as your provisions hold out. If you have outdoor skills you could even die there and no one would find your bones for decades. You’ll be able to do this for free into the foreseeable future.

  18. Sorry, Kitty your rationalization is used by those who want to sponge off of the taxpayers. Every single user of national forests gains a benefit to themselves of one kind or anothers, all should pay.
    Trailheads, trails, clean up, etc have to be paid for for welfare hikers the same as everyone else, so they need to pony up their fair share.

  19. PUBLIC lands are those that are held in trust for the PUBLIC by the government, as stewards of the land. We pay taxes for this stewardship. Charging additional fees or selling off lands without the permission of the Public should be cause for criminal complaint!