This essay was written in the days of Fee-Demo and precedes passage of the new Federal Recreation Lands Enhancement Act. The laws and penalties for failing to purchase a pass have changed since this was written.
You've been out enjoying a walk in the forest, but when you get back to your car you discover that someone who was wearing a green uniform has vandalized it. Placed upon your windshield is a note telling you that you've parked illegally and berating you for having failed to purchase the required parking permit. You read on and are shocked to discover that the notice attempts to extort $100 from you unless you immediately pay $3 baksheesh. Faced with these options you ask yourself: "What should I do?"
This scenario is being repeated thousands of times each day as the Recreation Fee Demonstration Program oozes over the landscape and the folks in green go after your green.
It's gotten so bad that I get calls from people who tell me they stopped to take a pee in the bushes or perhaps grab a quick glimpse of the sunset, only to return to their car and find a uniformed officer writing them a ticket. Hardly a day goes by without someone asking me: "What should I do?" The answer I give everyone who asks is always the same. I say: "It depends."
Photo by Stephanie S. Cordle/The Herald
The Recreation Fee Demonstration is not, as some suppose, a program to test whether the American public is willing to accept pay-to-play recreation. Key Republican Congressmen, Vice President Al Gore and the recreation industry made that decision for us long ago. Today, with full support of President Bush, Congress is charging full steam ahead to make this "demonstration" permanent.
The demonstration taking place on public lands today is designed only to test how to charge and collect recreation user fees in ways that people will pay-up with a minimum of complaint. Every test site within the demonstration program is a unique experiment in fee charging and fee collection. As a result, there is no one answer that applies universally. But there are generalizations that can be made.
This advice comes without warranty. I've worked with hundreds of people who, collectively, have seen it all. One woman has received 21 notices without ever receiving a genuine ticket. One man has been to court multiple times for Fee-Demo offenses and has won every time. Another was apprehended at gunpoint and, after being jailed overnight, has never received a trial date after nearly two years. Two men, after making it clear they would embarrass the Forest Service in court, had their cases dropped at the last moment. Another man lost in court but won big in the press because the Fee-Demo Program was exposed for the wise-use, corporate backed crap that it is. Other persons have lost in court and have nothing positive to show for their efforts.
There are no simple answers. What appears below is some of the best advice available, but please don't ask for a refund if it doesn't work for you. I'm not a lawyer, and this is not legal advice.
Do not buy a pass.
The mere act of purchasing a pass is counted as proof
that you support the Fee-Demo Program. Agencies measure success based upon
the number of customers who continue to use a test site after
implementation of the fee and upon the revenues collected at that site. If
you do not want to be counted as supporting user fees but are unwilling to
accept any risks associated with being defiant toward this program, then
don't use public lands where fees are being charged.
The fines are real.
The fact that this is a demonstration does not mean
that the Forest Service can not issue tickets. They can, they do and the
maximum fine authorized by Congress for a Fee-Demo offense is $100. Failure
to cooperate with a law enforcement officer who may be trying to write you
a ticket is a different offense and carries severe penalties.
You probably didn't get a ticket.
Few people receive genuine tickets. Most
receive Notices of Non-Compliance (NNCs). A NNC is a toothless threat
demanding that you pay the fee after the fact or risk a much larger fine.
If you receive an actual ticket, you may choose to think of it as an
invitation to court and as a risk-laden opportunity to inflict significant
damage upon the fee-demo program. As an alternative, you may choose to pay
the ticket and admit defeat. Those really are the only two options
available.
Ignore all NNCs.
These pieces of litter are not worth the paper they are
written on. The Forest Service's NNCs attempt to bust you on the grounds of
Regulation 36 CFR 261.15. This offense is committed when someone fails to
purchase a recreation pass. If a forest officer or volunteer compliance
flunky leaves one of these pieces of trash on you car, they do so without
any probable cause. They do not know who committed the supposed offense,
they do not know whether you were recreating and they do not know that a
pass was not purchased, even if none was displayed.
[Note: Legislation introduced in June 2001 by Senator Graham (D-FL, S.1011) attempts to remedy this situation so that the Forest Service can issue tickets without having probably cause. But until such time as Congress passes this ill-conceived and (probably) unconstitutional legislation, the law of the land requires the Forest Service to prove that a crime has been committed BEFORE they issue a ticket.]
You can do better than ignoring a NNC.
Ignoring NNCs, as suggested above,
is a silent, invisible and therefore weak form of protest. Some people send
these notices back to the Forest Service along with a note saying what they
think of the Fee Demonstration Program. It is important that your concerns
be heard, but read on, before choosing this particular route.
Don't accidentally admit guilt.
Many people return NNCs to the Forest
Service saying they would never buy a pass because the passes are wrong,
immoral, or any one of a dozen other good reasons. In so doing they are not
only registering their heartfelt opposition to this demonstration program,
they are admitting guilt. Until you tell the Forest Service that you did
not purchase a pass, chances are they have no proof that you committed the
offense for which they have accused you. When contacting the Forest
Service, never admit you did not purchase a pass, that you refuse to
purchase a pass or that you were in the forest for recreational purposes.
Tell it to a magistrate
People who have not incriminated
themselves and who ask the magistrate whether the Forest Service has
provided "probable cause" have never failed to have their cases
dismissed. In many courts, people who do not show up for their own
hearing have their cases dismissed en masse for this reason. Some US
Attorneys will no longer prosecute these cases. The Forest Service is
acting like a bunch of thugs, but their bark turns out to be far worse
than their bite.
The fact that the average citizen can't use public lands without appearing to support Fee-Demo is the Catch 22 that Congress and its corporate partners so cleverly built into the Fee Demonstration Program. If you pay, you are counted as supporting the program. If you do not pay, you are very likely breaking the law as the law was written. You may not be!
If you are using a forest for educational, religious, spiritual, work related or other non-recreational purposes, or if you set foot on public lands to exercise your Constitutional rights, then you need not purchase a recreation pass. Unfortunately, the burden of proof will likely be upon you. Whether you are found innocent or guilty will depend upon your ability to present your case convincingly and upon the personal proclivity of the judge who hears it.
Those are the basic rules of the road, but they alone won't get you very far. More significantly, I've said little that will help you to be effective in ending this egregious program. I can, however, offer the following:
The man or woman who gets a ticket, who fights it in court on the basis that the program is morally wrong, who is found guilty and is fined, who refuses to pay the fine, who is found to be in contempt of court and who accepts jail time because he or she would not pay to walk in the woods and who does all of the above with the media in attendance, will accomplish more to defeat the Recreation Fee Demonstration Program that any other person has done in the entire four years this program has been in existence.
So after all that, you may ask still ask: "What should I do?" If you'd like an answer that better fits your particular circumstances, please give me a call, or drop me a note and I'll be glad to help.
And if all else fails, see the following legal brief presented in the Case of Siart v U.S. The trial has been continued until September 6th, 2001 so that the US Attorney can respond to the Constitutional issues raised by the attorney for the defendant.