On February 9, in Walden, Colorado, the Jackson County Board of County Commissioners acted to oppose a fee area that has been proposed by the Forest Service on the Routt National Forest. The fee would apply to skiers, snowshoers, and snowmobilers using Rabbit Ears Pass, Buffalo Pass, and the Hahns Peak area in winter. The Commissioners based their action largely on concern about the economic impact of the fee, since the public tends to avoid fee areas and their county is heavily dependent on tourism.
The resolution states that "the Jackson County Board of Commissioners hereby requests that no new recreational fees be imposed on Federal lands under the Recreational Fee Demonstration Program within the boundaries of Jackson County, Colorado after the date of adoption of this Resolution." The resolution was adopted unanimously.
*Adapted from the Bend Bulletin, Published: February 7, 2004:
Bend man wins a round in fight against forest fee *
Patrick Kruse, 43, A Bend, Oregon man has claimed victory over the U.S. Forest Service and the Northwest Forest Pass program after a U.S. District Court judge disagreed with a lower court's ruling that he failed to comply with the agency's fee program.
The federal judge sent the case back to a federal magistrate for further review. Forest Service officials said Friday it is too early for the defendant, to celebrate, adding that the case is far from over.
At issue is how U.S. Forest Service officials enforce the Northwest Forest Pass fee program. Specifically, the case could answer whether or not rangers may leave tickets on parked vehicles that do not display the pass - as opposed to ticketing individuals as they return to their vehicles.
U.S. Magistrate Judge Dennis Hubel, sitting in Bend, found Kruse guilty of not paying a fee to recreate in the Mount Hood National Forest. Kruse was cited when Forest Service law enforcement officer Frank Aguilar left a citation on a car registered to Kruse that was parked at the Keep Mill Camp Ground on April 12, 2003.
Representing himself, Kruse argued that the Forest Service could not prove he had been at the campground that day. Just because a car registered in his name was there did not make him responsible for not paying the fee, he said.
On Dec. 10, U.S. District Judge Michael Hogan, ruled that the magistrate failed to prove beyond a reasonable doubt that Kruse violated the fee program. In his court order, Hogan said the government could not convict someone for not paying a fee while using a fee area if the only evidence is that the defendant owns a car that was found without a pass in a fee area. "The government must prove entry or use of a fee area, as well as failure to pay the fee," Hogan wrote.
Ultimately there was not enough information in the court record for Hogan to determine if the magistrate court proved Kruse was in the fee area, according to Hogan's order. For that reason, he reversed the trial court's guilty decision and wiped Kruse's record clean. But he also sent the case back to Magistrate Judge Hubel and asked the judge to determine whether the government proved "beyond a reasonable doubt if the defendant entered or used the fee area."
According to Kruse, that is a victory. "I have set a precedent that it is illegal for Forest Service officers to cite a car at a trail head if the vehicle does not have a pass," Kruse said this week. "All I did was debate whether this was legal, and I won."
According to the court transcript, the officer who left the ticket on Kruse's car never saw Kruse. Rather, he determined Kruse owned the car by calling Wasco County dispatch and checking the car's registration.
Kruse said the presence of his car does not prove he was there. "If someone rents a car and parks it at a fee trail head without paying the fee, is Hertz or Enterprise or any rental company that owns the car responsible?" he asked. "The Forest Service never confirmed I was there, so they have no right to cite me."
In fact, Kruse argued, his case proves the agency does not have the right to leave tickets on cars. But Lisa Fisher, a Forest Service law enforcement patrol captain, said the case will not set a precedent. She said that Hogan's order simply directs the magistrate to further analyze the evidence. Fisher said the case does not set a standard because different magistrates could take the same evidence and arrive at different conclusions. "The bottom line is that in that classic traditional sense this is not a precedent-setting case because the final ruling is not binding to every (magistrate) court," Fisher said. "By sending the case back to the trial court, Judge Hogan affirmed that each court will make a decision based on specific circumstances for each case."
The issue of whether or not rangers can ticket cars has been a long running one in Oregon, Fisher said. "It was because of this question that I instructed people not to leave tickets on windshields," she said.
If the magistrate reviews the case and still finds Kruse guilty, he may again appeal the case, Fisher said. Failure to pay the fee is considered an infraction, with a maximum penalty of a $100 fine, Fisher said.
Bypassing Congress, the Deparment of Interior (DOI) declared on
Febraury 6 that it will increase penalties for violations of the Bureau of Land Management's (BLM)
Fee Demo through an administrative decision. The law
authorizing Fee Demo does not give the DOI the power to enforce any penalty greater than a $100
fine.
Even without the legal authority, the DOI says that new BLM penalties will start on April 6, 2004. This will happen unless Congress passes legislation preventing it, or it is somehow challenged in court.
The BLM penalties will include provisions from the Federal Lands Recreation Enhancement Act (H.R. 3283). Provisions included in this legislation would change individual rights for violations to guilty until proven innocent, make owners of ticketed cars responsible for tickets - even if they were not present -, and change the degree of penalty from an infraction to a Class B misdemeanor allowing a $5,000 fine and/or 6 months in jail for non-compliance.
United States District Court Magistrate Judge Jennifer T. Lum
found Mr. Robert Bartsch guilty of engaging in a recreational activity within the San Bernardino
National Forest without paying the $5 recreational fee known as the Adventure Pass. According to
Forest Officer Nathan Judy, the car belonging to Mr. Bartsch was parked near the San Antonio Canyon
Falls Road August 17, 2003 and was not displaying the Pass.
The defendant admitted that he had hiked to the top of San Antonio Peak (Mt. Baldy). This infraction is punishable by a maximum $100 with no possibility of jail time.
The United States Government waived the $100 fine. Magistrate Jennifer Lum did sentence Mr. Bartsch to three months probation with the stipulation that he stay out of the forest for that period of time and a $10 court cost. Mr. Bartsch plans to appeal this verdict.
Mr. Bartsch has had 6 previous Forest Service citations dismissed and claims he has been singled out for persecution because he distributes information against this program to forest visitors.
The Forest Service has admitted that they have written over 200,000 Notices of Non Compliance (within the 4 Southern California National Forests) to defiant forest visitors since the inception of the fee program in 1997. No more then 15 real citations have been written for not paying the fee in Southern California.
Mr. Bartsch is the second person successfully prosecuted by the Forest Service here in Southern California for failing to comply. Mr. Terry Dahl of Santa Barbara was found guilty of not paying the fee January 9, 2001 by U. S. District Court Judge Christina A. Snyder and was instructed to pay restitution of $5 on the last one of 11 Notices of Non Compliance plus a court fee of $10.
Mr. Bartsch made the following statement to the court:
"Your Honor,
I am not guilty of doing anything immoral or wrong. If this test program (which is responsible for me being here in court today) becomes permanent law, we will be barred from all of our public lands without a permit every where within this country. This will essentially take away a very important part of our freedom so that it can be sold back to us at 'FAIR MARKET VALUE.' There is no limit as to what we can be charged.
Without a doubt, the vast majority of Americans will agree, that we will have lost a very important part of our freedom if we must have a permit to simply go for a walk in our forest. Our public lands belong to all citizens of this country, rich and poor, not just those who can afford to buy a permit to leave the city.
It looks to me as if America has become a hypocrisy, our government brags to the rest of the world how wonderful our freedom is and at the same time they are taking away our birthright to walk on our own public lands. I really do believe that this is a sad day in the history of our country.
Your honor, I am 64 years old and the best years of my life are over. If I can not continue to pursue freedom the way that our forefathers intended, you may as well lock me in prison. I refuse to pay any monetary fine that you impose on me or serve community service as a penalty. There is only one way that I can prove to this court, the Forest Service and our law makers that there are still many millions of Americans who believe in and cherish the principles of freedom that our forefathers fought and died for. I am unwilling to compromise those principles and for this reason, I will serve the time in prison rather than pay the $100 fine. There is no other way that I can protest this totally corrupt un-American test program that was fostered by corporate America to benefit corporate America.
I will appeal this guilty verdict."