Wildlands Use Taxes Challenged in Two States

TUCSON (CN) - The U.S. Forest Service unconstitutionally charges hikers $5 to enter undeveloped campgrounds and back-country trails at Mt. Lemmon, a popular mountain escape outside Tucson, hikers claim in a federal class action.

A similar class action in Denver challenges the fee for Summit Lake Park, in the Mt. Evans recreation area of the Arapaho National Forest.

Plaintiffs in the Tucson case say that the fee, originally implemented through the 1996 fee demonstration program, was repealed by the Recreation Enhancement Act passed as an appropriations rider in 2004.

They claim that the Coronado National Forest designation of a "high impact recreation area" - a mile-wide swath of land running the entire length of the 28-mile road, the only paved route leading from the desert valley to the alpine haven - is merely administrative, and was never authorized by Congress.

The winding, scenic road begins 15 miles from downtown Tucson and climbs to Mt. Lemmon, a 9,000-foot-high pine forest and winter ski area. The highway provides access to hundreds of thousands of acres of public lands, including wilderness areas. The class action, on behalf anyone who has paid the Mt. Lemmon fee, states that its current application - which applies to the entire route, with the exception of scenic overlooks and private property - violates the Recreation Enhancement Act, which prohibits charging for parking alone or for use of undeveloped areas.

Plaintiffs claim that the fee has a "chilling effect" on use of forest lands, in violation of the First Amendment, and that the assumption of guilt for vehicle owners violates Fifth Amendment due-process rights.

Plaintiffs include environmental activists and Christine Wallace, a hiker and camper who was prosecuted for refusing to pay the fee.

Daniel Patterson, a named plaintiff and Southwest director of Public Employees for Environmental Responsibility wrote on his blog that federal charges against Wallace were dropped just before trial. Patterson, who calls the fee a "rip-off," quotes attorney Mary Ellen Barilotti as saying that dropping the charges against Wallace prevented "the legal issues from being fully explored and allows the Forest Service to continue their fee programs without challenge."

The Tucson class action seeks to enjoin the Forest Service from enforcing of its fee policy, and demands new signs along the Mt. Lemmon highway specifying that a fee is required only for use of developed picnic and camping areas.

The Colorado class action, filed by Mary Ellen Barilotti of Hood River, Ore., addresses application of the fee to the non-federal Summit Lake Park, within the Mt. Evans recreation area of the Arapaho National Forest and owned by the City of Denver.

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