NW Forest Pass fight - local results are in

Herman Creek case dismissed March 7, 2012

As reported in the News Feb. 29, a local parking violation issued to a hiker at Herman Creek has become part of a much larger issue about access to public lands.

Last month, Portland resident Adi Fairbank took a hike from Herman Creek - without a Northwest Forest Pass on his windshield. When he returned, he found a misdemeanor citation and fine waiting for him.

Fairbank believes in free public access to public lands and does not believe the U.S. Forest Service is entitled to charge for access to sites with limited amenities. He decided to fight his citation.

With the help of Hood River attorney, Mary Ellen Barilotti, Fairbank successfully had his case dismissed in U.S. District Court on Feb. 27. Barilotti recently won a similar case against the USFS in Arizona.

Barilotti has been leading a fight in several Western states against the USFS's routine practice of requiring federal lands users to purchase passes for access to minimally developed areas.

With the legal precedent set by the case Barliotti won in Arizona on Feb. 9, the USFS opted to dismiss charges against Fairbank for his Herman Creek violation.

"The court decision is clear: No fees for parking and going on a hike, as long as no developed facilities are used," said Kitty Benzar, president of the Western Slope No-Fee Coalition, a nonprofit working for free public access to public lands who also assisted Fairbank.

Fairbank's case is the first in Oregon to draw legal benefit from the Arizona ruling - also known as the

"Adams" case. The court which issued that opinion serves as the appellate jurisdiction for nearly all western states, including Oregon.

According to "Adams," the USFS is prohibited from charging fees "for recreational visitors who park a car, then camp at undeveloped sites, picnic along roads or trailside, or hike through the area without using the facilities and services."

Historically, USFS has required fee passes based on its interpretation of Federal Lands Recreation Enhancement Act - which provided specific instances when fees might be charged on federal lands.

According to Barilotti, the new ruling negated the USFS interpretation of the Act and the application of its authority to charge in minimally developed areas under its jurisdiction.

The Adams case found that six amenities must be present to require a fee-based pass including: developed parking, permanent toilet facilities, permanent trash receptacles, interpretive signs or kiosks, picnic tables and security services.

USFS use passes in Oregon are referred to as the Northwest Forest Pass and cost $30 per year.

"After the USFS versus Fairbank 'fee-asco,' they will probably write a lot more Notice-of-Required-Fee (NRF) notices and a lot fewer violation notices," said Benzar.

According to a USFS circular, the NRF is a "non-enforcement compliance tool that provides users and opportunity to pay with no law enforcement action."

A change in pass requirements will have long-range implications for forest users and the USFS itself.

"This is not just about the cost of the pass," said Barilotti. "The Forest Service has exceeded the scope of its authority by charging fees in areas where they are precluded from doing so."

"I hope fighting in court encourages others to not just blindly buy a NW Forest Pass every year, but to stand up for their rights to access their public lands," said Fairbank.

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