jimfoo
September 27th, 2007, 08:37 AM
This case has relevance to us as a similar fee is charged to drive on a state road going up Mt Evans.
WESTERN SLOPE NO-FEE COALITION
P.O. Box 135, Durango, CO 81302
www.WesternSlopeNoFee.org
Dear Public Lands Supporter,
On September 4, 2007, Christine Wallace of Tucson was found guilty of failure to pay a day-use fee to the Coronado National Forest and fined the maximum first-offense penalty of $100. She had parked her car in a dirt parking area near, but not within, a developed picnic area and gone for a hike. She had not purchased a $5 day-use pass. This was a disappointing, but not a surprising, outcome.
Now for the rest of the story.
Wallace had initially been charged with two offenses on two different occasions. In the other case she had parked in front of the locked gate of a closed campground, without displaying a pass on her vehicle, and gone for a hike. There are no developed facilities anywhere close to the spot.
The fee authorization law says that the Forest Service is prohibited from charging a fee merely for roadside parking, or for hiking through undeveloped backcountry. [You can read the law at http://www.westernslopenofee.org/NoFee/flrea.php] Yet the Coronado is charging a fee for both of those activities if they occur within the Mt Lemmon "High Impact Recreation Area, " a 28 mile-long corridor that they define as extending for one-half mile on either side of the scenic highway. HIRAs are not mentioned or defined anywhere in the law They are Forest Service policy but not law.
For over two years, Wallace has been fighting both citations in federal court with the aid of attorney Mary Ellen Barilotti. The first judge to hear the case, Magistrate Judge Charles Pyle, agreed with Wallace's contention that HIRA designation does not give the Forest Service authority to charge fees for activities specifically prohibited in the law, i.e. parking and hiking, and he dismissed both charges.
However, the Forest Service appealed and Judge Pyle's decision was overturned by District Judge John Roll, who reinstated the charges, presided at the subsequent criminal trial, found Wallace guilty, and sentenced her.
Only days before the trial, the Forest Service dropped the first charge against Wallace, the one where she was parked along a road in an area far from any amenities. By dropping that charge, they virtually precluded a successful appeal because the remaining charge did not contain any clear appealable issue of law. It was decided on the facts alone: did she park there and does the Forest Service charge a fee there, yes or no? The aspect of whether the Forest Service has legal authority to charge that fee did not play into it because of the close proximity of a developed picnic area and the ambiguity of what constitutes "designated developed parking." The presumption of guilt based on failure to display a pass also did not play into it because there was a face-to-face encounter between Wallace and the citing officer.
By dropping the first charge the government prosecutors precluded a successful appeal by removing any issues of law from the case. Appeals courts typically defer to lower courts on issues of fact.
The Forest Service clearly made this move because they could see that they were vulnerable to an unfavorable decision by the appeals court on the first charge. If they were to lose on the issue of charging fees anywhere within a HIRA, even for activities for which the law prohibits charging fees, numerous other fee areas that are operated along the same lines would be affected. If they were to lose on the issue of presumptive guilt by the owner, driver, and all passengers in a vehicle merely from the fact that no pass is on display, they would no longer be able to enforce their fee programs by merely strolling around parking lots writing tickets.
In the current circumstances, an appeal is not likely to succeed, and Chris has reluctantly decided not to pursue one. Messages of support can be sent to her at lemmonhiker@att.net.
We are continuing to work with Chris and her attorney to explore other legal remedies, and will keep you up to date. Thanks for your continued support.
Kitty Benzar President, Western Slope No-Fee Coalition
WESTERN SLOPE NO-FEE COALITION
P.O. Box 135, Durango, CO 81302
www.WesternSlopeNoFee.org
Dear Public Lands Supporter,
On September 4, 2007, Christine Wallace of Tucson was found guilty of failure to pay a day-use fee to the Coronado National Forest and fined the maximum first-offense penalty of $100. She had parked her car in a dirt parking area near, but not within, a developed picnic area and gone for a hike. She had not purchased a $5 day-use pass. This was a disappointing, but not a surprising, outcome.
Now for the rest of the story.
Wallace had initially been charged with two offenses on two different occasions. In the other case she had parked in front of the locked gate of a closed campground, without displaying a pass on her vehicle, and gone for a hike. There are no developed facilities anywhere close to the spot.
The fee authorization law says that the Forest Service is prohibited from charging a fee merely for roadside parking, or for hiking through undeveloped backcountry. [You can read the law at http://www.westernslopenofee.org/NoFee/flrea.php] Yet the Coronado is charging a fee for both of those activities if they occur within the Mt Lemmon "High Impact Recreation Area, " a 28 mile-long corridor that they define as extending for one-half mile on either side of the scenic highway. HIRAs are not mentioned or defined anywhere in the law They are Forest Service policy but not law.
For over two years, Wallace has been fighting both citations in federal court with the aid of attorney Mary Ellen Barilotti. The first judge to hear the case, Magistrate Judge Charles Pyle, agreed with Wallace's contention that HIRA designation does not give the Forest Service authority to charge fees for activities specifically prohibited in the law, i.e. parking and hiking, and he dismissed both charges.
However, the Forest Service appealed and Judge Pyle's decision was overturned by District Judge John Roll, who reinstated the charges, presided at the subsequent criminal trial, found Wallace guilty, and sentenced her.
Only days before the trial, the Forest Service dropped the first charge against Wallace, the one where she was parked along a road in an area far from any amenities. By dropping that charge, they virtually precluded a successful appeal because the remaining charge did not contain any clear appealable issue of law. It was decided on the facts alone: did she park there and does the Forest Service charge a fee there, yes or no? The aspect of whether the Forest Service has legal authority to charge that fee did not play into it because of the close proximity of a developed picnic area and the ambiguity of what constitutes "designated developed parking." The presumption of guilt based on failure to display a pass also did not play into it because there was a face-to-face encounter between Wallace and the citing officer.
By dropping the first charge the government prosecutors precluded a successful appeal by removing any issues of law from the case. Appeals courts typically defer to lower courts on issues of fact.
The Forest Service clearly made this move because they could see that they were vulnerable to an unfavorable decision by the appeals court on the first charge. If they were to lose on the issue of charging fees anywhere within a HIRA, even for activities for which the law prohibits charging fees, numerous other fee areas that are operated along the same lines would be affected. If they were to lose on the issue of presumptive guilt by the owner, driver, and all passengers in a vehicle merely from the fact that no pass is on display, they would no longer be able to enforce their fee programs by merely strolling around parking lots writing tickets.
In the current circumstances, an appeal is not likely to succeed, and Chris has reluctantly decided not to pursue one. Messages of support can be sent to her at lemmonhiker@att.net.
We are continuing to work with Chris and her attorney to explore other legal remedies, and will keep you up to date. Thanks for your continued support.
Kitty Benzar President, Western Slope No-Fee Coalition