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 Oregon Mountaineering Association
131 NW 4th St. # 258; Corvallis OR 97330
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USFS Loses Costly Court Battle

Wednesday, 20 September 2000

Opponents of Lemmon fee score a win in court

By Rhonda Bodfield Sander ARIZONA DAILY STAR

[Follow-up editorial from the Star]

A federal judge threw out criminal charges yesterday against four Tucsonans who were cited for not paying the $5 Mount Lemmon recreation fee.

In a ruling that fee opponents hope will undermine the government's ability to enforce the fee or make it permanent, U.S. District Court Judge Frank Zapata determined that the government did not have sufficient proof to find the four defendants guilty of a crime that could carry a $5,000 fine and six months in jail for each.

"Justice was served,'' said Lynn Jacobs, an Earth First member and one of the four defendants. Asked if he planned to pay the fee if he returns to the mountain, Jacobs said the ruling showed it was going to be difficult to enforce.

The Forest Service started collecting the fee for Mount Lemmon recreation in September 1997. So far, it has raised $1.6 million and spent it on a variety of things, from bear-proof food boxes to increased law enforcement and upgraded restrooms. The authorization for the fee ends next September.

Forest Service spokeswoman Gail Aschenbrenner said it was too soon to determine what changes the ruling might prompt. But she was hoping it won't trigger a rash of noncompliance.

Three out of four drivers now pay the fee when they visit the mountain. In addition, she said, many users who get notices of violation send in their money or the passes they had simply forgotten to put on the windshield.

Aschenbrenner said most of the 1.5 million visitors to the mountain each year recognize the "burden on the facilities up there" and the fact that "the money we get from Congress isn't enough."

"We get good support from local people because they've been able to see the improvements made up there," she said.

The hearing had started off badly for the defendants. First, Zapata refused to dismiss the case outright. Then he ruled that the defendants could not explain their political opposition to the fee, which ranged from public policy disagreements to arguments about spiritual freedom.

Attorneys for Jacobs, Diana Byrum, Brent Finley and Diahn Swartz could do little more than attack the evidence in the case.

In all four cases, the Forest Service left citations on car windshields in areas that required a fee. In all of the cases, the Forest Service received letters back bearing the defendants' names, stating they "refused" or "elected not to" pay the fines.

Some said access to public land should be free to taxpayers whose money already is used to sustain parks and forests. One cited a California case in which charges were dropped against an anti-fee activist when he said he was in a wilderness area to protest the fee, rather than to recreate.

A key point: While the letters didn't deny the defendants drove up the mountain without paying the fine, they also never admitted it.

Assistant US Attorney Christina Cabanillas said logic dictated that if the defendants had not driven the vehicles up there, they would have written letters stating they weren't at fault.

And while earlier press accounts make it clear that at least some of the defendants went up the mountain without paying, none of the defendants testified and Zapata said there were too many holes to fill with guesswork.

It wasn't clear that the cars actually belonged to the four defendants. It wasn't clear that the defendants were even the ones up on the mountain that day, or if they were, whether they were the drivers, who are the only people against whom the Forest Service can issue citations.

Zapata said probable cause might have been enough if the case were civil. But since the remedy sought was criminal, Zapata suggested the Forest Service may have to start doing more thorough investigations. If it's unreasonable to wait around for the drivers of vehicles to return, he suggested, then investigators should at a minimum interview the vehicle owners to determine who was driving that day.

All of which sounds like a lot of work to track down $5-a-day scofflaws. Worse for the Forest Service, with no ability to pursue such cases civilly, any future enforcement will have to meet beyond-reasonable-doubt standards.

The government will not be able to retry the case, Cabanillas said. And the case wasn't cheap. It began in December. A half-dozen Forest Service employees were in court throughout yesterday. [OMA Note, USFS employees are generally paid overtime (1.5) for appearing in court.] The defendants all had public defenders. Asked why the government pursued it, Cabanillas had a simple answer: "They broke the law."

Earth First members say they will continue to protest the fee. On Saturday, they plan to set up near the toll booth and film driver reaction to send to Congress. They plan to point out there is no built-in relief for poor families. And they want to note that while taxpayers spend $5 a day to visit the forest, ranchers in Arizona pay $1.35 a month to allow a cow to graze public land.

"If enough people don't pay it,'' predicted A.J. Schneller, "they'll have to cancel the program."

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