Fed up with paying to play

TUCSON, Arizona — When Chris Wallace hikes on Mount Lemmon, she finds a source of spiritual strength. The Tucson legal secretary says she connects with her inner self on the mountain, as well as with the resident plants and animals. "I feel joy at being in nature, almost like it gives me power," says the 57-year-old Wallace, a member of the Unitarian Universalist Church. "I can feel down, and when I go to the mountain, I feel encouraged."

The Forest Service, no mystic, charges hikers like Wallace $5 a day. Mount Lemmon in Coronado National Forest is one of more than 4,000 sites on the West’s national forests where daily fees are collected, with the money going toward upkeep and maintenance. But Wallace and others in the growing no-fee movement say they have already paid to use public lands — in the form of income taxes. They argue that trailhead fees amount to double taxation.

So, in 2002, Wallace stopped paying to park near her favorite trailheads. The Forest Service first warned her, then cited her. Finally, it took her to court.

In September, however, Judge Charles Pyle tossed out the criminal charges against Wallace, ruling that the government can’t charge people to park at trailheads. If the federal magistrate’s ruling stands, the Forest Service may have to stop charging fees altogether, or limit them to developed sites such as picnic areas, says Coronado District Ranger Larry Raley. And that, he says, could deal a near-fatal blow to the program that requires people to "pay to play" on public lands.

The fee controversy began about a decade ago, when Congress approved a pilot program allowing federal agencies to impose user fees to raise money for a huge maintenance backlog. Opponents say such fees undermine the very definition of public lands and close them off to lower-income hikers and campers. Fees are OK at campgrounds and other developed areas, they say, but not for simple access to hike or hunt — particularly when the typical $5 fee for a day hike is more than double what a rancher pays to graze a cow on the same land for a month.

But federal land managers warn that axing the program could force maintenance cutbacks or outright closure of picnic areas, toilets and other facilities. Fees now bring in an estimated $40 million a year nationally. At Mount Lemmon and neighboring Sabino Canyon, for example, the Forest Service nets about $850,000 a year.

"Money collected from that area goes for picnic tables, bearproof containers and upgrading the restrooms," says Raley. "If we no longer have that, we need to look at the program and decide how that work will get done."

Even if user fees were charged only at designated areas, cutting user revenue in half, it would make a substantial difference in the agency’s ability to maintain its facilities, Raley says, especially given the recent congressional tendency to slash funds for such purposes. "Facilities will continue to deteriorate unless additional funding comes from somewhere else," he says.

Wallace, who has hiked on Mount Lemmon for 35 years, paid the fees for the program’s first five years. Then, after leaders of an anti-fee group spoke at her church, she decided to stop paying. Nothing happened the first 12 times she hiked; then she received four or five warning notices. In September 2005, the Forest Service cited her twice.

The year before she received those citations, however, the law governing them had changed. The original Recreational Fee Demonstration Program expired in 2004, and was replaced that year by the Federal Lands Recreation Enhancement Act. FLREA extended the program for another 10 years, but limited its scope. Agencies could no longer charge "solely for parking, undesignated parking or picnicking along roads or trailsides." They also couldn’t charge for general access to public lands, traveling without using facilities, camping at undeveloped or dispersed sites or stopping at pullouts. Fee opponents felt they had new legal ammunition.

The Justice Department argued that the Mount Lemmon fees are for use of a recreation area that meets specific guidelines, not just for parking space. The Forest Service has classified the top 28 miles of the two-lane road winding up the peak as a "High Impact Recreation Area," one of 98 nationally.

But in his ruling, Judge Pyle mocked that logic: "Applying the government’s reasoning, while the driver of a car may legally park her car within the HIRA, she cannot get out of her car without paying a fee. With the possible exception of amorous teenagers, the concept of parking one’s car but not getting out to enjoy the fresh air and take in the beautiful sights is just not a commonplace occurrence."

Wallace says the public reaction to her case has been gratifying. Supporters from around the country have donated $2,500 toward a legal defense fund.

The Forest Service is appealing Pyle’s ruling. In the meantime, however, it has stopped citing hikers on Mount Lemmon who don’t pay fees. And the no-fee movement is encouraged: "The Forest Service has not carried out the law. We’ve hesitated until now to use the word illegal, because only the courts can decide what is legal," says Kitty Benzar, co-founder of the Western Slope No-Fee Coalition, based in Durango, Colo. "But I now feel free to use the word ‘illegal’ in regard to Mount Lemmon."

Tony Davis is an environmental reporter for the Arizona Daily Star.

• Recreation