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 Oregon Mountaineering Association
131 NW 4th St. # 258; Corvallis OR 97330
oma@i-world.net
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Oregon Guides and Guide Services

United States Forest Service and the OMA - Part 1

The Main Index Page for this issue contains an overview, a timeline, and links to all documents such as FOIA requests and their denial.

In the summer of 1999 the United States Forest Service issued citations to a volunteer leader instructing a class for the OMA. The citations were ultimately dismissed by the US Attorneys office since they would not have stood up in front of a Federal District Judge. Given this disposition of the charges the entire thing comes down to harassment. Neither the OMA nor any other leaders were cited or subpoenaed, and it appears that the USFS used the OMA in some sort of personal vendetta.

[Note - This was followed up with a further attack, investing a monumental amount of effort and public funding in a detailed undercover investigation in 2001. Despite the huge investment made the result was two more "petty offense" citations identical to those described here, which were not served until April of 2003 - two years after the fact. "Part 2" was never resolved and there is a link to a description of that at the end of this page. Like Part 1 it also appears to have gone nowhere. It is also important to note that no citations have been issued to anyone for private guiding where a clear client-guide relationship existed and could be established. The only citations are for OMA classes, and these have not been prosecuted.]

We have learned since the time of this incident that our course information was sent by Doug Ironside to Glen Kessler who was the ranger at the time. Glen now operates on the mountain as "Mountain Savvy". We had been asked by the Forest Service to complete some formalities in order to teach our avalanche course once or twice a year and this harrassment happened within a few months of doing so, clearly in an effort to undermine that process which was underway. Less than a year later Glen (aka Mountain Savvy) began teaching avalanche courses on the mountain. (Mr Kessler is not the only USFS employee holding a special use permit which would be denied to others. At least one other employee holds a permit and another business which operates under some permit routinely hires a USFS employee. Obviously, there is a clear conflict of interest in the entire commercialization process.)

Here are some more details on the original citation, the disposition of the charges, what we learned about handling such a situation and a few issues which are highlighted by this situation. Hopefully this will be of some use to any other group or individual encountering similar difficulties while recreating on government lands.

The Citations   Disposition of Charges   Lessons   Issues  

The Citations

During our July 10, 1999 mountaineering class United States Forest Service (USFS) Ranger Glen Kessler talked to our group at the trailhead about "unauthorized commercial activity" and indicated that he would send an incident report concerning our class to the Hood River Ranger District. He said we would hear from somebody about the matter. Neither the OMA nor the class leader ever heard anything from anyone at the United States Forest Service (USFS). On September 16 the leader learned by phone from the US Attorneys office in Portland that a citation had been issued to him for this class. It was not made out to the OMA but to the leader personally.

The same leader, unaware of any citation from July, led our August 21 class. This class was changed in format so that instruction was offered on lands which are not property of the United States Forest Service(USFS). Participants in the class did opt to go to the Eliot Glacier on their own with the understanding that this was not part of the class. Nobody opted not to go up on the glacier, nor did anyone state any objection to the revised class format.

According to his written report, Mr. Kessler spent Saturday spying on the group with a telescope and taking photographs while they were on the glacier but did not contact them. On Sunday he raced up the glacier for the sole purpose of writing a citation. He did so despite the fact that several members indicated, in agreement, that they did not consider this to be a part of the formal class and were there as a voluntary association of friends. He attempted to aggresively interrogate people without informing them of their rights first. When asked about this he admitted that there was no obligation to comment on the situation at that time. A citation was issued to the leader even though he was volunteering time for the class off of United States Forest Service (USFS) property and was on the glacier in the same capacity as everyone else.

At the time we openly provided all class details to anyone who requested them. One of the inquiries received was from Doug Ironside. In documents provided by the US Attorneys office under a discovery request it came to light that Ironside had requested this information in order to forward it to Glenn Kessler. Doug is a local guide who appears to work closely with Glenn at times as well as working through Portland Parks and Rec and a now-defunct company called Art of Adventure. While most class participants refused to comment there was a couple, Mr. and Ms. Mellor, who spent a long time speaking with Glen on the side. It appears that they are friends of Mr Kessler who were enrolled in the class on his behalf, although this cannot be firmly established.

In the other two of the four OMA classes held that summer other volunteer leaders handled the fieldwork. The United States Forest Service (USFS) did not take any action concerning either of these classes even though it is very likely that they were aware of them.

Disposition of the Citations

The two violations were originally set to be heard in Federal Court in Portland on October 1, 1999. The office of the US Attorney was unable to provide copies of key documents or to reply to discovery requests by this date so it was set back until January 7, 2000. Mr. and Ms Mellor (considered to be key witnesses for the prosecution) were unavailable to the USFS on that date so it was then set back again until February 4. Prior to Feb 4 the cited leader informed the US Attorneys office that he would not consent to a magistrate judge but would exercise his right to have the case heard by a District Judge. When he appeared on Feb 4, after rushing back from out of state for the court date, he was informed that the charges were to be dropped "without prejudice" while the US Attorney did further investigation. [Which they did, in fact, do. See link below to "Part 2".] At this point the charges were already quite old and further action would preclude the right to a speedy trial. The defendant was not notified that the citation would be dropped until he had appeared at the courthouse even though the decision had been made in advance.

The cited individual did intend to appear and defend the charges brought by "The People of the United States" against him. He was denied any public defender resources. The US government would have had a legal aid prosecuting who would have been backed up by an Assistant US attorney. Any United States Forest Service (USFS) personnel who appeared would be paid at overtime rates to do so.

Lessons Learned

1) Individuals have a right not to comment to a forest officer acting in a law enforcement capacity. Our group was not informed of this right until somebody asked. Whether or not the officer has a right to require a persons name and address is not clear.

2) The right not to comment extends to later situations off of the government lands. Five months after the "offense" took place two OMA members from the class were contacted by USFS law enforcement. One agreed to meet with the officer and was handed a subpoena, which he felt was more than a bit underhanded. Another made it bluntly clear that he had nothing to say to the officer and he was never contacted again. Trying to be courteous doesn't pay.

3) It is best to request a Federal Judge. The monthly "CVB" hearings in front of magistrate judges appear, in practice anyway, to require a very low burden of proof from the government and the US Attorneys office typically prevails. This is really just a forum to make defendants feel like they had a chance to stand up to charges. To go before a Federal District Judge in a dedicated hearing requires a better case. If there really isn't a case, as in this situation, it won't be pursued before a District Judge. (Note that the court automatically provides a form for defendents to sign which waives their right to a district judge, and that the implications of this form are never explained. Do not sign legal forms without understanding the implications!)

4) It is helpful to have members or friends who are attorneys. For these "CVB" violations the US Attorneys office is the only point of contact. So for all court and procedural information you are expected to speak to those who are prosecuting you. No distinction is made between the prosecutors office and the Court. At one point the court was contacted and they referred us back to the US Attorneys office. Do not expect objective or useful guidance from within the system.

5) Don't underestimate how threatened current holders of exclusive permits can feel, even by clubs. Our course information was passed onto the Forest Ranger by Doug Ironside, a guide for Art of Adventure at the time. Glen Kessler is now operating his own business under the name Mountain Savvy, in direct violation of CFR 2635. It is too bad these "guides" can't rely on their own quality of service and must resort to harassing others to keep their competition down.

Issues to Consider

1) This whole charade was at a significant cost to the taxpayers, both by the USFS and the US Attorneys Office. Is this where you want appropriated tax money and trailhead parking taxes to go? [Note that any costs involved in this round pale in comparison to what was spent on the full investigation which followed.]

2) This is not over how the OMA operates, the OMA has not been cited. It is a federal violation issued to a volunteer leader in a club. Consider the precedents involved. The OMA relies on volunteer leaders, as do most other groups. It is being claimed that an individual volunteer leader is responsible for their own special use permit.

3) This program included four volunteer-led classes for the summer, total. Each was well within wilderness group size limits with six members. The cost was less than 50% of what commercial operators charge. (If the OMA were commercial we would hold more classes and charge more. The demand is there, we turned people away. However, we had less classes this year than last and held the cost the same.) If this can be called "commercial" almost anything can.

4) Shortly following this incident the papers touted an upcoming National "Public" Lands Day, during which the United States Forest Service and like agencies would receive $5 million worth of work free from *volunteers*.

Part 2

These issues were raised to a higher degree, along with more serious questions, when the US Forest Service followed up with a very costly in-depth investigation in 2001. The net result of using two special agents (one in an undercover capacity) and subpoenaing our bank records (establishing that our cash flow really is extremely low!) was simply two more of these same "petty offense" tickets.

The second set of violations has never been resolved, and the issue seems to have died once again. Follow that on the page dedicated to it.

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