Mount Shasta Herald
By David Manley
When the U.S. Forest Service dismissed its case against Larry Auxter for climbing Mt. Shasta without a $15 permit, Auxter said he was overwhelmed with congratulations.
"I must have had 100 people hug me, slip me on the back, or shake my hand," he said.
As far as Auxter and his admirers were concerned, it meant the end to enforcement of the Forest Service's so-called recreation fee demonstration program.
But not so fast!
Auxter learned on the morning of January 26th, the day he was to face a federal magistrate in a Redding courtroom, that his case had been dismissed without prejudice.
It is the words, "without prejudice" that make a difference, according to Forest Service officials.
"Auxter's case is still being reviewed," said Frank Packwood, who was the prosecuting officer.
"The case can be refiled since it was dismissed without prejudice, but I am not able to discuss specifics," Packwood said.
Cases are reviewed based on their individual merits and one or two decisions do not reflect abandonment of the fee program, according to Packwood.
"A number of citations have been issued and prosecuted in the past, but we decide whether or not to prosecute each case on the available evidence," he said.
Though Packwood is a Forest Service employee, he emphasized he was not speaking as a representative of that agency but as a prosecutor who was assigned to Auxter's case by the U.S. Attorney's office.
He explained that employees of government agencies sometimes function as a court officer in order to prevent U.S. attorneys from becoming "circuit riders."
Packwood said he spoke from a legal standpoint and referred policy questions to Shasta-Trinity National Forests officials.
Redding-based public affairs officer Bob Ramirez concurred with Packwood that the case could be reopened at any time, and said, "The Forest Service's position of collecting fees and prosecuting non-payers is still the same."
But Ramirez admitted he did not know of any other outstanding citations that were scheduled for court action.
Auxter, however, believes many others will now follow his example and defy the fee collection program.
"I've had at least 50 people tell me they were going to climb the mountain without paying a fee," he said, "So I believe the Forest Service can expect a high level of disobedience."
Whether they like it or not, Auxter said, he believes his case sets a precedent. He noted that two local climbing equipment suppliers had stopped selling permits at their stores because the future of the program had become uncertain.
Leif Voeltz. owner of The Fifth Season, confirmed that permit sales have been suspended for the time being.
"I can't say what our long-term plans are, but we are not participating at this point. Until we have a clearer picture, we are not anxious to tell our customers they have to have a permit to climb the mountain," Voeltz said.
House of Ski and Board owner Lynne Birimisa agreed in principal with Voeltz.
"We are heading in that direction, but haven't made a final decision yet. It doesn't make sense to sell permits if they are not going to enforce them," Birimisa said.
Without business sponsorship, Auxter said, most Sunday climbers will have to buy their permits inconveniently from "the iron ranger," as the permit dispenser at Bunny Flat is known.
Voeltz and Auxter emphasized they held no hard feelings toward employees of the Mt. Shasta Ranger Station, many of whom are long-time residents of the area.
"The Forest Service told the local guys there would be regional enforcement and prosecution and they've backed down on that," Voeltz said.
Several California environmental organizations, including the Sierra Club, are actively opposing recreation fees.
In December the case against a Southern California man who refused to buy an Adventure Pass for the Angeles National Forest was dismissed.
A judge upheld Bob Bartsch's constitutional right to protest the pass, which is part of the fee program. She also ruled that the Adventure Pass, and by extension all Forest Service fee programs, are discretionary - meaning that participation is optional.
A Santa Barbara-based environmental organization, Keep the Sespe Wild and Free, said, "It is difficult to ascertain what this means for the 18,000 Southern Californians who have been given these notices of non-compliance, and for the existence of a fee de signation program."
Matt Mathes, the regional spokesman for the Forest Service, said from his San Francisco office that Auxter's case had nothing to do with the overall program.
"My sense is that it was an individual case and not precedent-setting," Mathes said. "Cases are dismissed all the time for a variety of reasons."
Mathes said that on a national scale recreation fees are considered to be successful because 80 percent of the money is returned to improve the areas where they were collected.
"There is a huge problem of human waste on Mt. Shasta," Mathes said. "It is a heavily used mountain, and the public was not pleased with the human waste situation at Lake Helen and other places on the mountain."
"Fees are being used in part to remedy that situation, they are not disappearing down a black hole," the spokesman said.
These arguments failed to convince Auxter that the recreation fees are a good idea. Indeed, he sees a conspiracy to commercialize national forests and other wilderness areas.
He admits, however, to being apprehensive over the without prejudice clause of his cases dismissal. "I don t like to have that hanging over my head," he said
But he believes most people will choose not to buy permits since he was not penalized.
"I think that people will be climbing Mt. Shasta without paying and they will have the fact written on their foreheads. I mean, if you have a law, enforce it; if you aren't going to enforce it; you don't really have a law,"' Auxter said.