Site Survey and Analysis of Forest Service and BLM Implementation of the Federal Lands Recreation Enhancement Act Western Slope No-Fee Coalition October 1, 2005 Mt Lemmon, Coronado National Forest, Arizona Page 1 I. Public Lands Access Fees: The Issue Public lands fees have been controversial since the 1997 passage (as an appropriations rider) of the Recre- ational Fee Demonstration Program (Fee Demo). Fee Demo relaxed prohibitions in previous law (the Land and Water Conservation Fund Act) against charging for general use and access to Forest Service and Bureau of Land Management lands except in developed campgrounds. Fee Demo was renewed several times between 1997 and 2005 and during those years the Forest Service and BLM implemented broad fee programs on millions of acres of public lands. Entrance fees were placed on entire National Forests, federal fees were charged for use of state and county roads, and fees were levied on dispersed undeveloped backcountry such as hiking and OHV trails and wilderness areas. These fees created a backlash from citizens who objected to them as double taxation, a burden on local communities surrounded by federal lands, and a barrier to public access to federally managed lands. Fee opponents pointed out that this fundamental change in public land policy had been accomplished without public debate or congressional approval. While the Forest Service and BLM pressed for permanent fee authority, an increasing number of citizens were calling for repeal of the Fee Demo program altogether. II. FLREA Background The Federal Lands Recreation Enhancement Act (FLREA) was attached as a rider to the 2005 omnibus appropriations bill by U.S. Representative Ralph Regula and signed by the President December 8, 2004. It never received a vote on the floor of the U.S. House and was never introduced or considered in the U.S. Senate. The FLREA repealed Fee Demo and replaced it with a new, supposedly more limited, fee program. Up to that point, the Western Slope No-Fee Coalition had been working with U.S. House Resources Committee members and staff trying to find a compromise on the Fee Demo/public ownership issue. We asked to have over-broad provisions removed from the bill and to have other provisions added preventing the agencies from imposing fees for dispersed undeveloped sites or for general access. The agencies in turn wanted unlimited fee authority with little or no congressional oversight. These negotiations were rendered moot when the rider was attached. Congressional intent was expressed by Representative Regula, the law’s sponsor, in a press release at the time the FLREA was passed: “As passed by Congress, H.R. 3283 would limit the recreation fee authorization on the land management agencies. 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 lands. This is a significant change from the original language. The language included by the Resources Committee is much more restrictive and specific on where fees can and cannot be charged.” [emphasis in original] Despite those reassuring words, the current law does not fulfill Mr. Regula’s promises. It is poorly written and riddled with contradictory and ambiguous language, which has led to excesses by the Forest Service Page 2 and BLM.. The agencies are using these weaknesses in the law to modify existing fee programs as little as possible, retaining almost all of the controversial Fee Demo sites, and to extend new fees to millions more acres of public land. The Western Slope No-Fee Coalition has called on Congress to repeal the FLREA because it opens the door to agency excess, constitutes a new tax, harms communities located near or surrounded by federal lands, unfairly limits public access, and subjects citizens to extreme criminal penalties. III. Implementation Guidelines Encourage Non-Compliance The FLREA defines and allows three levels of fees: 1. Standard Amenity Recreation Fee: This applies to “areas” (a vague, undefined term) with all of six amenities: developed parking, permanent toilet, permanent trash receptacle, interpretive sign, picnic tables, and security services. 2. Expanded Amenity Recreation Fee: This applies to campgrounds, developed boat launches, developed swimming areas, and cabin or equipment rental. These are similar to the fees previously allowed under the Land and Water Conservation Fund Act. 3. Special Recreation Permit Fee: This applies to “specialized recreation uses” by commer- cial users and organized events, but also includes language implying that any motorized recreational vehicle can be considered a “specialized” use and leaving the door wide open for the agencies to define any type of use as “specialized.” The law contains language intended to limit the proliferation of fees and fees for simple access to dispersed backcountry use. It specifically prohibits fees: “(A) Solely for parking, undesignated parking, or picnicking along roads or trailsides (B) For general access . (C) For dispersed areas with low or no investment…(D) For persons who are driving through, walking through, boating through, horseback riding through, or hiking through Federal recreational lands and waters without using the facilities and services (E) For camping at undeveloped sites that do not provide a minimum number of facilities and services…(F) For use of overlooks or scenic pullouts.” It also states “The Secretary shall not charge an entrance fee for Federal recreational lands and waters managed by the Bureau of Land Management, the Bureau of Recla- mation, or the Forest Service. The Forest Service and BLM have issued Implementation Guidelines to their Regions and Field Offices. The Guidelines invent a whole categories of fees (“High Impact Recreation Areas”) that appears nowhere in the FLREA, stretch the category of “Special Use Permits” to cover everyday uses such as hiking, mountain biking, and OHV trail use, and encourage local managers to charge fees at trailheads that control access to hundreds of square miles of undeveloped backcountry. Despite the limiting and protective provisions in the law, the agency implementation guidelines encourage de facto entrance fees by telling managers they can charge for groups of sites and areas with little or no federal investment. They downplay the requirement that day-use fee sites offer developed amenities by stretching the term “area” to include up to hundreds of thousands of acres. They define “permanent toilet” to include porta-johns, “permanent trash receptacle” to include seasonal dumpsters, and “security services” to include volunteers with no law enforcement training or authority. The Interim Implementation Guidelines effectively instruct local managers on how to bypass congressional constraints and charge fees for dispersed areas, general access, and recreational use of undeveloped land. Page 3 Fees continue to be charged for vast tracts of land in California, Arizona, Colorado, Washington, Oregon, New Hampshire, and other states. Fees continue to be charged for trailheads, OHV routes, mountain biking trails, equestrian trails, and wilderness areas. All of this is in clear contradiction to the letter of the law and to the provisions intended to protect the public’s access to federally managed land. The implementation guidelines show a disregard for the restrictive language in the FLREA and a clear intent by the Forest Service and BLM to have the fee program they want, regardless of public or congressional opinion, or the law. IV. Agencies Fail to Drop Fee Sites Despite Restrictions in the FLREA Evidence of agency non-compliance with the law and calls for its repeal began to be brought to the attention of Senators and Representatives by their constituents soon after it was passed. In June, 2005, in a move widely viewed as an attempt to take the heat off of the effort to repeal the FLREA, the Forest Service released a list of 480 fee sites that they claimed were being dropped because of the restrictions in the new law. The press release announcing the dropped sites stated “all Forest Service units that charged recreation fees under the old fee demo program reviewed their current fee sites and determined whether or not their sites meet requirements as outlined under (the new law). As a result approximately 500 day-use sites will be removed this year. .” But analysis of the list using the Forest Service’s own data revealed that 203 of them (43%) never were listed as Fee Demo sites, 20 were sites that had been charging fees under a legal authority other than Fee Demo, 28 sites were closed to public use, 16 were sites where managers plan to add amenities and begin or resume charging a fee, 24 sites had already been dropped from the Fee Demo program prior to passage of the FLREA, and 21 supposedly “dropped” sites lie within “High Impact Recreation Areas” or National Volcanic Monuments and will continue to require a fee to enter the larger area. In all, 51% of the sites on the dropped list did not fit the announced description as having been dropped due to the restrictions in the new law. The list of 480 “dropped” sites was intentional misrepresentation to the public. The Forest Service continues to charge fees at over 4,500 sites, including vast tracts called “High Impact Recreation Areas” or requiring Special Recreation Permits, many of which do not meet the criteria in the FLREA. The BLM has claimed in the press to be in “100% compliance” but has not dropped a single Fee Demo site under the additional restrictions in the FLREA. In fact, they recently announced plans for new or increased fees at 38 sites in six states, without following the requirements for public participation specified in the FLREA.