Adams vs USFS: The Mt Lemmon Lawsuit

BACKGROUND: Near Tucson, Arizona, you can drive the Catalina Highway to the summit of Mt Lemmon. The highway is 28 miles long, bordered by the Coronado National Forest. It provides access to the private community of Summerhaven and the Mt Lemmon Ski Area, southernmost ski area in the U.S. It’s popular with Tucson residents and visitors year-round, providing respite from the desert heat in summer and access to snow in winter. Along the highway there are several developed campgrounds and picnic areas. But there are also trailheads that lead into undeveloped backcountry, including designated Wilderness, and at least three undeveloped primitive camping areas. There are lots of places to park along the way and access the National Forest that are devoid of any amenities.

In 1997, under Fee Demo, the Forest Service erected an entrance station at the bottom of the highway and began charging a $5 entrance fee. This was legal under Fee Demo, which contained almost no restrictions on where fees could be charged. The fee was unpopular, but it was legal.

Fee Demo was repealed in December, 2004, and replaced with the Federal Lands Recreation Enhancement Act. Because entrance fees on National Forests had proven unpopular, the FLREA contains language that prohibits the Forest Service from charging them. It also prohibits fees for scenic overlooks, parking, and driving or walking through federal public lands without using any facilities or services.

Under this new, more restrictive, language, fees for Mt Lemmon should have been discontinued except at developed campgrounds and picnic areas that contain the minimum facilities specified in the law. The Mt Lemmon fee however, has continued except for developed scenic overlooks. A half-mile strip on either side of the highway was designated a High Impact Recreation Area, or HIRA. The HIRA designation does not appear anywhere in the law, it is only in Forest Service policy.

In 2006 the Forest asserted, in the case of U.S. vs Christine Wallace, that they can require a fee for all uses within the HIRA because the required amenities are present somewhere in the area, regardless of whether they are used. If you stopped or parked your car anywhere within the HIRA (except at developed scenic overlooks), even if there are no amenities there or you did not use them, you could be ticketed for failure to pay the fee.

LEGAL ACTION: Wallace lost her criminal case and was fined $100. But in 2008 she was back along with several co-plaintiffs and filed this civil suit challenging the way the Mt Lemmon fee program was implemented. The case traveled a legal road nearly as long and winding as the Mt Lemmon highway itself, but ultimately resulted in a landmark decision by the 9th Circuit Court of Appeals throwing out HIRAs and sending the Coronado National Forest back to the drawing board. Read the legal filings and media coverage below.

With such clear legal guidance, you would have thought the Coronado National Forest had gotten the message. Wrong. In January 2017 they announced a “restructuring” of their developed recreation program that proposes to implement fees at the same trailheads where the judge told them they could not, as well as numerous others outside the Mt Lemmon area. They took public comments and held meetings, but it was all for show. In September 2018 they published notice in the Federal Register that they plan to go ahead with these trailhead fees, just as we predicted they would. The final step is approval by the Arizona Recreation Resource Advisory Committee, which is tentatively scheduled to meet in December 2018.

The WSNFC obtained the Forest’s summary of public participation through a Freedom of Information Request. You can read the report HERE. There were a large number of comments opposing the plan to impose fees for parking at trailheads, which are exactly the kind of fees that the court said are illegal in Adams vs USFS. The summary document completely disregards that argument and the Forest plans to go ahead anyway. As a concession to public opposition they say they will provide free parking somewhere near the trailhead but not at the trailhead itself. This sets up a two-tier system dividing those who are able and willing to pay (even though the fee is illegal) from those who will be treated as second-class citizens because they aren’t able or willing.

The WSNFC will be watching for the announcement of the Arizona advisory committee meeting and will notify our network so that they can have one last opportunity to stop these illegal trailhead fees.

Adams vs USFS Legal Filings
Mt Lemmon Complaint
Mt Lemmon Defendants Motion to Dismiss
Mt Lemmon Response to MTD
Mt Lemmon Order Granting Motion to Dismiss
Mt Lemmon Motion to Amend Judgment
Mt Lemmon Govt Response to Motion for Reconsideration
Mt Lemmon Plaintiffs Reply to Govt Response
Mt Lemmon Motion for Reconsideration Denied
Mt Lemmon Appeal
Mt Lemmon Forest Service Response
Mt Lemmon Appeal Reply
Mt Lemmon Decision

Adams vs USFS Media
2008 05 15 Fee Fight Fattens
2009 12 24 Mt Lemmon Fight Continues
2010 03 18 Mt Lemmon Dismissal Disappoints
2012 02 10 Court Rejects Mt Lemmon Fee
2012 02 17 Restore the Public in Public Lands
2013 06 28 FS To Drop Fees At Mt Lemmon