January 2005

New public-lands fee measure passes

By Jim Mimiaga

Congress has given final approval to a major expansion of a controversial system that charges citizens fees for entering public lands.

In a move that avoided public scrutiny and Congressional debate, the Federal Lands Recreation Enhancement Act was inserted at the 11th hour into the 3,000-page omnibus spending bill by Ohio Republican Ralph Regula. The act provides for access and other taxes at outdoor recreational areas on federal public lands. An annual-al “America the Beautiful” pass costing $85 to $100 would grant access to all such areas, or citizens could pay individual fees at each site.

Preparing for a ride at Boggy DrawThe House and Senate, faced with a government shutdown if the bill were denied, approved the $388 billion FY 2005 spending package on Dec. 9. The bill’s final passage had been briefly delayed because of concern about another provision that was inserted without discussion. This one would have allowed certain members of Congress and their staff to view the personal IRS tax returns of citizens. Congress reconvened on Dec. 6 to fix that part of the spending package. Opponents of the fee measure had hoped to have it pulled as well from the omnibus bill, but failed in that effort.

However, they have not given up. Kitty Benzar, co-founder of the Western Slope No-Fee Coalition, said the group is planning to introduce legislation to repeal the act. Before it was attached as a rider, the measure had been making its way through Congress as a separate bill, HR 3283, for negotiations and compromise. Another bill in the Senate would have kept the Fee Demo program only in national parks. “We have good support and there have been good early signs that we can do this during the next session in January,” Benzar said. “We’re by no means beaten on this issue.”

Riders to legislation are common practice, but are widely criticized as violating the spirit of democracy because they allow proposed measure that are controversial to become law without discussion in open Congress and without a separate vote on the particular bill’s merits.

In this case, the fee measure leaves the public facing the possibility of more fees for entering lands that had previously been free of charge. It gives local land managers with the Forest Service and Bureau of Land Management the green light to justify fees for popular recreation areas in order to augment revenue lost from persistent yearly funding cuts. The recreation access tax replaces the Fee Demonstration Program which passed in 1996, also as a rider to a larger bill and also through the efforts of Regula, who has no federal public lands in his district but has said he wants to provide monies needed for maintenance and enhancement of habitat and facilities on federal lands. Fee Demo was a program to test how the public would accept entrance fees at certain chosen sites that had previously been free. It also provided that the sites, and some others already charging fees, could keep the revenues they collected instead of turning them over to the general fund.

Fee Demo became highly unpopular in many parts of the West. It was vehemently opposed by many local communities and governments. Considered too unpopular and ineffective, the fee at Yankee Boy Basin near Telluride, for example, was suspended and replaced by volunteer efforts to monitor and clean the area. La Plata, San Miguel and Montezuma county commissioners and the Colorado state legislature all passed resolutions opposing Fee Demo. The San Juan County, Utah, commissioners also passed a resolution opposing Fee Demo.

The new act repeals Fee Demo and replaces it with a program that applies nationwide rather than just to certain sites. It comes up for possible “sunset” in 10 years.

Under the new measure, failure to “pay to play” can result in criminal penalties for violators, even though Regula has downplayed this.

On his own web site (wwwc.house.gov/regula), Regula states, “This bill will not put people in jail for failure to pay the fee. It brings fee non-payment in line with other recreation offenses, such as littering and driving off road, which are classified as Class B Misdemeanors. Of course, no one is put in jail for these offenses. The bill only seeks to create uniformity within the law. As a practical matter, the fine (usually around $50) for fee nonpayment will stay the same.”

But jail time is possible, according to the bill’s final language.

According to the act: “The failure to pay a recreation fee established under this Act shall be punishable as a Class A or Class B misdemeanor.” That is a significant change, because under the previous Fee Demo program, not paying was considered an “infraction” with a $50 fine. Infractions, such as a parking ticket, do not go on a person’s criminal record, whereas misdemeanors do.

Criminal penalties do apply for failure to pay under the new law. While the first offense, according to the bill, cannot exceed $100, subsequent violations are considered misdemeanor offenses. For a Class A misdemeanor, penalties can be a fine of up to $100,000 and up to one year in jail; for Class B, the fine is up to $5,000 and up to six months in jail. There is no guidance for rangers on which misdemeanor class applies, so it is apparently up to their discretion after the second offense.

Both the registered owner of a vehicle and its occupants are jointly liable for penalties for non-payment, unless the registered owner can prove that the vehicle was used without his or her permission.

Regula has said the criminal penalties had been removed from the measure. Calls to Regula’s aides regarding the contradiction went unreturned. On his web site, Regula criticizes the press for making “inaccurate statements about the bill.”

The bill’s language is confusing and contradictory in places, according to Benzar. For example, the bill states that the government “shall not charge any standard amenity recreation fee or expanded amenity recreation fee for Federal recreational lands and waters administered by the Bureau of Land Management, Forest Service or Bureau of Reclamation lands or waterways under this Act for any of the following,” including:

  • Parking or picnicking along roads or trail sides.
  • General access except when it is authorized otherwise.
  • Persons who are driving, walking, boating or horseback-riding through Federal recreational lands without using the facilities or services.
  • Camping at undeveloped sites.
  • Using overlooks and scenic pullouts.

Later the bill states that the federal government “may charge a standard amenity recreation fee for Federal recreational lands and waters under the jurisdiction” of the BLM, Bureau of Reclamation or Forest Service if the sites are a National Conservation Area, National Monument, National Volcanic Monument, destination interpretative center or a category simply stated as ‘an area’.”

An area, according to the bill, must include “significant opportunities for outdoor recreation” and must contain designated, developed parking; a permanent toilet facility; a permanent trash receptacle; an interpretive sign, exhibit, or kiosk; picnic tables, and security services.

“That term ‘area’ is too vague and could be interpreted to be an entire forest, which would easily comply with all of those things needed for a fee,” Benzar said. “We anticipate some test cases.”

She said that under the new law, areas that currently charge fees under the previous, now-defunct Fee Demo program do not qualify, “so we encourage people to point out to rangers the areas that charge fees but do not have all of the necessary infrastructure under this new law.”

For example, Cedar Mesa in southeast Utah charges fees just to go for a hike at Grand Gulch but does not have a trash receptacle, according to employees there, which therefore would disqualify it from fees.