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U.S. judge's ruling could end forest user fees

Submitted By: Anonymous Climber on Sep 18, 2006


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U.S. judge's ruling could end forest user fees
By Tony Davis
ARIZONA DAILY STAR
Tucson, Arizona

A federal magistrate's ruling could end, or scale back the scope of, the $5 daily user fees charged on Mount Lemmon and in Sabino and Madera canyons.
The case could set a national precedent, possibly ending fees in other national forests around the country, said the chief Forest Service official for the Mount Lemmon-Sabino Canyon area.
It could also mean cutbacks in maintenance and improvements of picnic grounds and campsites, and possible closure of some facilities because the fees generate hundreds of thousands of dollars annually that are plowed into recreation areas, the forest official said.
Magistrate Charles Pyle dismissed Forest Service charges last week against a Tucsonan who got $30 tickets twice in the same month for failing to pay fees when parking and hiking on different spots on Mount Lemmon.
Pyle ruled that the Forest Service went beyond its congressional authorization when it charged fees for parking to use a trail, for roadside or trailside picnicking, for camping outside developed campgrounds and for roadside parking in general.
For hiker Christine Wallace, a legal secretary who says she finds Mount Lemmon "a spiritual place . . . where I connect with nature," Pyle's ruling was exciting because it could ultimately end what she says is a system of double taxes for public-land users.
"I was the one who was out there on the line," Wallace said Tuesday. "I'm excited that the charges were dismissed. More than that, I'm excited at the way the judge reacted to our testimony, our motions, our exhibits. He did research on his own. He put a lot of thought into it."
The federal government hasn't decided whether to appeal the ruling. But if the ruling stands, it appears that the Forest Service will have to charge fees only for use at specific sites not for driving up the mountain and parking at certain areas, as it does now.
Opponents of the fees both locally and nationally call Wallace's case a landmark. They say she is the first person to have legally challenged a Forest Service ticket by failing to pay the fee since a 2004 law was passed restricting the Forest Service's ability to charge such fees.
"The Forest Service has not carried out the law. . . . We've hesitated until now to use the word illegal because only courts can decide what is legal, but now I feel free to use the word illegal in regards to (the fee on) Mount Lemmon," said Kitty Benzar, co-founder of the Western Slope No Fee Coalition, based in Durango, Colo.
About 4,505 national forest sites across the country had been charging fees until the 2004 law passed, although 435 such sites had fees eliminated because of the new law's restrictions, U.S. Department of Agriculture Undersecretary Mark Rey testified to Congress last year.
The Tucson ruling could spell an end not only to the fees, but to the Forest Service's ability to repair and upgrade campgrounds, picnic areas and toilets on Mount Lemmon, said Larry Raley, district ranger for the Santa Catalina Ranger District. The fees raise $700,000 annually for Mount Lemmon and Sabino Canyon.
Raley said that if some or all of the fees go away, some picnic areas may be closed and pay toilets could appear on the mountain, among other changes and cutbacks.
He said he doesn't think that Congress will appropriate more money to make up the difference, since those appropriations have dropped 50 percent to 75 percent over a decade.
"I don't believe it is a double tax," Raley said. "Money collected from that area goes to picnic tables, bearproof containers and all the restrooms in that area. Several campgrounds and campsites have been rebuilt."
The Forest Service will keep charging the fees as long as the legal case is unsettled, but Benzar predicted that many people won't pay from now on.
"I guess there will be a showdown," Benzar said. "They'd have a lot of nerve to keep ticketing people. It will be ugly."
This ruling brings to a head a bitter debate over the user fees that has intensified over a decade. A 1996 federal law first gave the Forest Service the right to charge fees under what was then called a demonstration program. The service started charging for Mount Lemmon in 1997, at Sabino Canyon in 2001 and at Madera Canyon in 2002.
Federal officials said they had no choice but to collect fees, because attendance at popular recreation sites had mushroomed while agency budgets were pared. Opponents said that charging people to walk on public lands was unfair when mining and timber companies and ranchers paid below-market fees to take out copper, cut timber and graze their cattle there.
Wallace, who has lived in Tucson 35 years, hikes somewhere in the Tucson area at least once a month. At first, she paid the Mount Lemmon fees. She decided to stop paying in about 2002 after being convinced by arguments of no-fee advocacy groups that the fees aren't fair, she said. She also grew to believe that the fees were part of a broader effort toward privatization of what she feels are essential government services, including schools and prisons.
After parking on the mountain 10 to 15 times without getting a ticket, she got tickets twice in September 2005 for parking near the General Hitchcock Campground and at the Marshall Gulch Picnic Area, both times so she could hike popular trails.
Rather than paying the $30 fines for each ticket, she decided to contest them in court. She drew support from the no-fee coalition and got an attorney from Santa Barbara, Calif., who specializes in court appeals of user-fee tickets.
"I just didn't think it was right to have to pay," Wallace said.


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By xylo
From: tucson
Sep 18, 2006

I think overall the fees are good as long as the money goes to keeping the place cleaned up. Although I think the fees are ridiculously too high for the camp sites up on Lemmon and the f.s could do a better job maintaining them.

If this woman went up to Mt lemmon so much why didnt she just buy a season pass?

I have noticed the forest service lands getting really trashed though and I think it will get worse

Fees/No fees what are peoples opinions?

By brad schierer
Sep 18, 2006

As a non-fee paying Tucsonan, I agree with Greg. It seems that the only reason the fee is collected is to generate revenue for the Forest Service. They don't even man the fee collection booth most of the time. It is double-taxation because the Forest Service already receives my tax dollars in order to function. Not only that, but they pay subsidies for logging companies to clear cut forests in an effort to keep the forests "healthy." Charging fees for public use of public land is the same as charging the Air Force a landing fee every time they wanted to use one of their own runways to land. The simple fact of the matter is that our public lands have been grossly mismanaged, and the Forest Service is trying to bail itself out with a "Fee Demonstration Project."

BTW the "Fee Demonstration Project" was actually spearheaded by companies like Disney in order to determine what if any fees users would pay so they could decide whether it would be profitable for private companies to take over "concession operations" on public lands.

To echo Greg: "F@ck the Fee"

(P.S. Greg you should get t-shirts made.)

By Tony B
From: Around Boulder, CO
Sep 18, 2006

Well, the fee demo program in unconstitutional anyway, so I can't figure why the whole darn thing has not been overturned.

By 1Eric Rhicard
Sep 18, 2006

The fees are wrong. It is double taxation. If you use the Rose Canyon parking area it triples. If they charged the ranchers, miners and logging companies properly no fees would be needed.

By rockboy
Sep 19, 2006

well, I guess we could always just close all the forests and let no one enjoy them.

By Mark Michaels
From: Draper, UT
Sep 19, 2006

Similar fees exist in Utah: American Fork Canyon near Provo, Millcreek Canyon in Salt Lake City, and the Mirror Lake Highway, a HUGE fee area in the Uinta Mountains an hour east of Salt Lake. But NO user fees in Big Cottonwood and Little Cottonwood Canyons...where the ski areas generate income from the forests. The Forest Service has a lot of good people...with some so-so managers, and Slumlords in control of their budget (the Congress). I think part of the problem is the fees are somewhat random and arbitrary. If they're gonna make me pay for parking my car at a trail head, are they gonna pay for broken windows and stolen stereo? Instead of enforcing parking regs...how about some real ranger work! Bust the assholes riding ATVs off trail, litterbugs, and thieves who lurk in our Forests! Then maybe I'll be willing to pony up some user fees!!

By Timothy Roehr
From: Tucson,Az
Sep 19, 2006

I find it ridiculous that the annual fee to park at Rose Canyon is almost what a yearly pass costs to visit all the National Parks.

By brad schierer
Sep 19, 2006

Maybe it's just me, but how exactly do you "close a forest?" It's not like you can lock the doors.

As for Rose Canyon, I might be wrong, but I think they charge the extra money because it was established as a special use area, and the Forest Service needed to pay Game and Fish for the stock fish that are put into the lake. I always thought a fishing licence covered that, but hey who knows.

By Alan Searcy
From: Pine, Colorado
Sep 23, 2006

It's interesting that when we are taxed for the fire department to show up, they do and we don't have to buy an annual pass to get them to really come when there's a fire. I don't have to pay any police or swat team member a user fee when they respond to a call at my home or business. They are funded by taxes just like the NPS. If the cops need bigger guns, they don't charge me more, they budget for em with my tax money and buy them. I liken the bullshit park fees to buying a car. If you bought a car would you pay a user fee every time you drove it? Why do they continue to collect money twice to fund the NPS and the state parks? Once through taxes and then again if you actually use the facility you've already paid for. It's a total crock of shit and it doesn't smell any better with time. The state parks and the NPS (along with the Forest Service, USGS and BLM) are the red-headed step children in the budget process at the local and federal level. It's bullshit, but until enough people stand up and call BULLSHIT, they'll keep collecting the fees because they can. I'll gladly wear the "F@CK THE FEE!" T-shirts. Now, if you don't pay taxes in the U.S. should the tourists/terrorists still pay an entry fee? Hmmmm...

By Tang
From: SD
Sep 24, 2006

I think the real problem is that efficient and government run in opposite directions.
Subsidized mining, logging and ranching is stretching our already thin user fees as well.

By KCP
From: Eldorado Springs, CO
Sep 24, 2006

Alan Searcy Wrote:

"It's interesting that when we are taxed for the fire department to show up, they do and we don't have to buy an annual pass to get them to really come when there's a fire. I don't have to pay any police or swat team member a user fee when they respond to a call at my home or business. They are funded by taxes just like the NPS. If the cops need bigger guns, they don't charge me more, they budget for em with my tax money and buy them. I liken the bullshit park fees to buying a car. If you bought a car would you pay a user fee every time you drove it? Why do they continue to collect money twice to fund the NPS and the state parks? Once through taxes and then again if you actually use the facility you've already paid for. It's a total crock of shit and it doesn't smell any better with time. The state parks and the NPS (along with the Forest Service, USGS and BLM) are the red-headed step children in the budget process at the local and federal level. It's bullshit, but until enough people stand up and call BULLSHIT, they'll keep collecting the fees because they can. I'll gladly wear the "F@CK THE FEE!" T-shirts. Now, if you don't pay taxes in the U.S. should the tourists/terrorists still pay an entry fee? Hmmmm..."

This type of double taxation isn't endemic to NP user fees. A more blatant example, as those who have opened small businesses are aware, is the Tangible Personal Property Tax. The reality is that our government only gets away with what we allow them to, and nothing will change until we collectively get off of our asses and force a change. Until then, bend over, my friend.

By Tony B
From: Around Boulder, CO
Sep 25, 2006

"The government can only do something FOR you within the extent that it can do something TO you." -Harry Browne

Yes, so when you ask the government for something, expect to pay for it at least once.
If we eliminated the "non-profitable" national parks, like Capulin, Harriet Tubmann/Undergroud Railroad, etc... the parks could be run as an enterprise division and taken off the general fund completely, alleviating a lot of the double taxation. Popular parks like RMNP, Grand Canyon, Zion, Yosemite, etc... actually run at a massive surpluss and could pay for some of the lesser draining parks, or have their fees reduced.

I am not against this, as at least they wouldn't be charging people who DONT use the parks to run them. It would offend my sense of fairness less. But unfortunately, the constitution specifically forbids fees on public lands, stating that the cost of public land must be equally distributed amoungst the citizens. So that is why you pay a "filing fee" instead of a "use fee" when you get a bivy permit. Legal bullshit, of course. Government lawyers are deployed to explain why doing what they wanted to do is legal anyway...
Our founding forefathers would have not only roll over in their graves, they'd likely grab their muskets and march on Washington DC for blood.

By Grant Bryans
From: buena vista colorado
Sep 26, 2006

this is such a touchy issue in one way user fees make it possible for us climbers and other to recreate in these forest system and to have a toilet (more times than not a latrine.) yet why can't we be taxed for this annually instead of paying every time we use the forest system.

if this is truly a public Forrest than everyone should have to pay to maintain it...EVEN if they choose and yes it is a choice not to use the Forrest...so if we make some sort of excise tax on the USFS we surely can make up for the lack of user fees....

why won't this work, because some shmuck from some major metropolitan area is going to throw a S#it storm about having to pay for some tract of trees he will never use....and odds are this jack ass has never left the city and has never seen the sky full of stars... this is an interesting issue that i am going to keep an eye on....not only can this effect the USFS but places like Indian creek and other climbing areas that are being tested to see if user fees can be put to use...

By KCP
From: Eldorado Springs, CO
Sep 26, 2006

Grant Bryans wrote:

"if this is truly a public Forrest than everyone should have to pay to maintain it...EVEN if they choose and yes it is a choice not to use the Forrest...so if we make some sort of excise tax on the USFS we surely can make up for the lack of user fees...."

Some history: www.cr.nps.gov/history/online_books/mackintosh3/index.htm

By Tony B
From: Around Boulder, CO
Sep 26, 2006

"this is such a touchy issue in one way user fees make it possible for us climbers and other to recreate in these forest system and to have a toilet (more times than not a latrine.) yet why can't we be taxed for this annually instead of paying every time we use the forest system."

I guess as a libertarian, my drive for rightness and fairness (personsal responsibility) is greater than my self interest on a particular issue. I don't think it's fair that people who don't want or need something aught to have to pay for it. So I'm fine with user fees if they were actually going to do what they should- which involves STAYING WHERE YOU PUT THEM.

If I made a "public free armpit shaving clinic" would you think it was fair? Well, if you shaved your armpits, maybe. I could go on about how it's a public resource and all, but we both know it would only benefit people who would use it. National parks are of little interest to some people, who aught not to have to pay for them any more than I aught to have to pay a tax subsidy to the local pro football team.

But to be clear, since this is a general fund and taxation issue and not a enterprise division of government, I am against the fees.
And regardless, they are unconstitutional... but then again, so are the national parks...

By brad schierer
Sep 26, 2006

So I'm not sure where the idea that fees are unconstitutional came from and I REALLY don't know where the idea that the Forest Service is unconstitutional came from, but the only article in the Constitution that has anything to do with Congress's right to tax anybody is Article 1 Section 8:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States."

Not only does the Congress have the Constitutional authority to collect taxes to maintain the National Forests (Welfare) of the United States, it also has the authority to levy fees if it levies uniform fees at ALL parks and forests. The legal question is whether or not the Forest Service exceeded the authority granted to it to collect fees indiscriminately. Thankfully, the judge in this case ruled that the Forest Service did, thus providing legal precedent that can be used for Stare Decisis in later cases, thereby increasing the likelyhood that those pesky fees will be a thing of the past.

By Tony B
From: Around Boulder, CO
Sep 29, 2006

Brad, when the constitution refers to the Welfare of the United States it refers to the union, not the people in it. The drafters were clear on this and refer to The people as (not surprisingly) as 'The People'. They refer to the states and the governing body as 'The United States' and not 'The People of the united states.'

If it were not for the fox watching the henhouse, we would all be crystal clear that the forest service does not provide for the defese of or provide general welfare for The United States or for the Union of them.

The 9th and 10th amanedments (in the bill of rights) is frequently overlooked, thus ignoring the fact that any powers not specifically enumerated within the constitution were to be left to the states or to the people and are STILL expressly forbidden to the federal government. Ergo, without a constitutional amendment, the NFS/NPS is actually an unconstitutional and thus illegal organization. If we want to keep it, we should amend the constitution to do so. It seems petty though, doesn't it? Perhaps the matter should be left to the states as specified in the constitution, where no such matter need be concerned. The federal government was intended to PROTECT us, not PROVIDE for us.

As for the cost of the land and its maintenence, the origional constitution specifically provides that the provision and cost of federal lands be equally distributed amoung the population and uniformly thoughout the states. THis is impossible when different parks cost different amounts and only charge certain people, users or not.

As for your 16th amendment arguement, although I acknowledge that Article I, section 9, of the Constitution was modified by it, please read that more carefully:
"AMENDMENT XVI Passed by Congress July 2, 1909. Ratified February 3, 1913.
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

This exemption is only for TAXES ON INCOMES. Use fees are not taxation of income, Ergo, the constitution with respect to this remains unmodified. Note how short and specific the origional language in the consitution was- it was simple, precise, to the point, and ABSOLUTE. It was black and white and not designed for loopholes.

Without reading Madison's record of the consitutional convention or the debates following it (IE federalist papers) some of this may not be clear, especially with the modern government lawyers intentinally muddying the waters along every step of the way.

If you want to know more about Madison's intend with the draft of the Virginia plan or what his language meant, you need look no further than his record a few years later in decisions as a Court Justice, or from his recorded briefs, addresses, inaugerals, and letters as the 4th President of the United States. Since this and the Philidelphia plan were the platform for discussion and the basis of the final document, the contentious points of these were pretty well debated on the comittee of the whole prior to final drafting (Commitee of style, if I recall correctly) then one can presume that most other attendees/representatives were in accord with the language and the intent.

Admittedly, Morris also influenced the wording as the drafter (and Chief of the Comittee Of Style, if I correctly recall?) during the drafting of the constitution, and his intent might have separated somewhat from Madison's, but not too much, considering both favored the stronger version of federalism.

If you would like copies of the federalist papers and their retorts, of the history of the constitutional convention, etc... I have copies for loan I'd be happy to share & mail to you if you will return them. They are also cheap on Amazon.com.

By Kirk Woerner
Oct 4, 2006

Section 8 of Article I defines what congress can do. The first entry is...

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

The 16th amendment was in response to a court finding that the "Income Tax" is not constitutional and is not in question here.

The question is what does "Welfare" mean? Madison (and presumably you) may have thought "Welfare" meant only the power to keep to the union together, but he was not the only one involved. Hamilton and others believed in the broader literal meaning of the word. And in fact, from very early on, Congress has been acting, and the courts have allowed it to act, within the broader Hamilton understanding.

Your argument about the role of the federal government was decided against you very early in our history. South Boulder has a lot of wind turbines too if you wanna take aim.

By Tony B
From: Around Boulder, CO
Oct 4, 2006

Kirk:
"shall be uniform throughout the United States"

IS something about that unclear?
LOTS of things decided in one court are overturned in another. And I don't know of many unanimous opinions even in the supreme court,
so generally I could site a few supremem Court Justices that have signed to AT LEAST a minority opinion that agreed with me.

Furthermore, after Addams passed the taxes in his presidency, didn't Jefferson and Madison (let's not forget that Madison was a chief Justice) start out with overturning those, the Alien and Sedition Acts, and just about everything else they said Adams did that was unconstitutional?

By Kirk Woerner
Oct 4, 2006

I thought you were saying two things

1) That the constitutional stuff Brad cited had anything to do with the 16th amendment.
I clarified it because he was referring to article 1, not the 16th amendment. And article 1 says congress can tax for the welfare of the US as long as it's uniform across the US. This means, as you suggested and the court found, that the fees are unconstitutional.

2) That you were saying US parks are unconstitutional based on the definition of "welfare".
I replied that this is a lost argument because the courts have routinely and repeatedly found that that constrictive view of welfare is not in play.

You as a citizen can vote to NOT do things like have federal lands and services because you feel that the feds should not do so. You can even have the opinion that constitution should NOT allow these things. You can even have the opinion that courts have misinterpreted the constitution in their findings. But in our systm, the definition of "constitutional" is decided by the courts which have found welfare to mean a lot of things starting at least as early as Monroe in the early 1800s if not earlier. In short, the courts are the umpire. And remember the classic umpire line.

- "I calls them like they is"
people complain
- "I calls them like I see them"
people complain
- "They ain't nothing until I call em"

By Tony B
From: Around Boulder, CO
Oct 4, 2006

Kirk,
Me? I just thought that the best ump was the guy who drafted the constitution and at large presided over the debates (as you obviously know, as a history buff, Washington said little a word). So that would be Madison.

And you are forgetting that the Washington and Adams appointed judges who then appointed themselves the powers they had right now when they made the Marbury Vs Madison decision over the then Secretary of State, James Madison (under President Jefferson) decision not to deliver commissions as appointed by Adams under presidential order.

No less, Like I said, historically the strict constructionalists agree with me, so there is no one umpire.

My points are that:
1) Yes Welfare is to be Welfare of the State, not of the people. This has gotten dirty with precedents, but it was the original intent. I liked Jefferson's Quote in one of his 2 terms as President, when requested to provide "Welfare" for French immigrants:
"While I sympathize with their cause, I can not lay finger on any article in the constitution that empowers me to do so."

Not that Jefferson was involved in the constitutional convention- as you will recall, he was serving overseas as secretary of State in France during that time.

2) That the 16th amendment does not alter the power to tax except for with the matter of income taxes. (And as you know Incomes did NOT mean salary in the 19th century) Thus the original provision for any taxation, fee or Tariff *other than on incomes* is still required to be distributed evenly among the states.

Argue all you want, but I have NEVER witnessed a 9-0 major decision in the courts. Not even the supreme court agrees on how these things are understood... And imagine that, they always seem to vote along party lines. Look at Kelo Vs New London, 2005, whereas the majority 'liberal' court decided that seizing private property via condemnation to give to corporations for private (corporate) gain was constitutional, so long as taxes are increased on the land since it "promotes the general welfare."
Are you kidding me? Then again, 4 Justices agreed with me that it was unconstitutional. Apparently the ones that can read.

Lastly, you said:
"You as a citizen can vote to NOT do things like have federal lands and services because you feel that the feds should not do so. You can even have the opinion that constitution should NOT allow these things."

No I can't, because I don't live in a democracy. Thank God. I live in a constitutionally limited republic. To quote Jefferson again, in an 1887 letter to the French, "By and large, the people in the United States are not qualified to Legislate, so with us they merely choose the Legislature."

What we have lost is the leash on the legislature, which Jefferson and Washington called 'the chains to forever bind down the government.' Of course, they were refeering to their fear that the federal government would grow and feed it's own growth- precisely why the constitution and Bill of Rights was drafted. To limit the scope and size of Government.

By equada pete
Oct 11, 2006

I am a outfitter in so.cal, who has tried to figure out what good this fee is used for. my district ranger does not have any answers
for me, but did tell me it was illegal not to have a pass to park
anywhere in the forest areas. I have looked it to this by way of
their supposed business plan and have found that the forest services
for the San Bernardino Nathaniel forest are that mostly of volunteers. There are four times more volunteers than full-time
paid sbnf workers. I know i would rather volunteer and know it getting done than pay and wait for my trails to be on the list of things to do. non-profit and volunteer groups can do the same job
of stewardship for any recreational activities in your areas.
public use & enjoyment is 5% of the pie and facility operations & maintenance is only 9%.
70% goes to fire & aviation management.

I do not promote this fee when visitors ask if i sell it i my store.
i want some t-shirts to sell in my store.

By Tony B
From: Around Boulder, CO
Oct 24, 2006

www.givemeliberty.org/RTP2/UPDATES/Update2006-06-09.htm

Kinda interesting, on the subject of constitution, law and taxation.

By Adam Stackhouse
Administrator
Dec 19, 2006

When parking, understand that one is not recreating, rather communing with nature, a religious expression. Thrown out of court every time

By Steve Pulver
From: Tucson, AZ
Nov 10, 2008

I just got an actual ticket on Saturday, for parking in the parking area for the summit crags. The ticket says 'Offense charge: failure to pay fee'. I was surprised, I thought they were only handing out the slips that say something like 'opportunitiy to pay'.